Case No 190/88

IN THE SUPREME COURT OF SOUTH AFRICA

APPELLATE DIVISION

In the matter between:

MATLAKALA ELIZABETH MOTAUNG 1st Appellant SANNA TWALA 2nd Appëllant SOLOMON MOTSOAGAE 3rd Appellant LINDA ALAXANDRA HLOPHE 4th Appellant LORRAINE ZANELE SOBUZÏ 5th Appellant PHINEAS MASEKO 6th Appellant PRISCILLA NTHABISENG MOREME 7th Appellant DANIEL MBOKWANË 8th Appellant SIPHIWE GOODBOY MSIPHA 9th Appellant

and

THE STATE Respondent

CORAM: HOEXTER, SMALBERGER, MILNE, JJA et FRIEDMAN, NIENABER, AJJA

HEARD: 14 May 1990

DELIVERED: 17 August 1990

J U D G M E N T

HOEXTER, JA

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HOEXTER, JA,

In the Transvaal Provincial Division each of the

nine appellants was convicted of murder with extenuating

circumstances. Three of the appellants were sentenced to

imprisonment for life. On each of the remaining six

appellants a shorter term of imprisonment was imposed.

With leave of the trial judge the appellants appeal against

their convictions and sentences.

During July 1985 daily life in many Black

townships in various parts of the country was disrupted by

rioting and other forms of violent disorder. One Black

township thus afflicted was Duduza on the East Rand, where

four young men died in shootings. In Duduza the belief

was generally held that the four men in question had been

shot by the police. The joint funeral of the four dead

men was held on the afternoon of Saturday 20 July 1985.

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The funeral was attended by thousands of people and the

local cemetery was unable to accommodate all the mourners.

A portion of the crowd stood outside the cemetery. Also

there present was a 24 year old woman, Rosaline Maki

Sikhosana ("the deceased"). In the court below the

deceased was often referred to simply as "Maki". The

deceased was suspected of being a police informer and the

lover of a police sergeant. While the service at the

graveside was in progress a section of the crowd just

outside the cemetery set after and caught the deceased.

The deceased was then surrounded by a bloodthirsty and

violent mob. In the course of a sustained and savage

assault at the hands of this mob, during which she was set

alight, the deceased was battered to death.

The sequel to the killing of the deceased was the

trial of eleven persons ("the accused"), including the nine

appellants, on a charge of murder in -the Springs Circuit

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Local Division. Before the trial further particulars as

to the thrust of the State's case were sought on behalf of

the accused. Responding thereto the State detailed (in

para 1 ) the assault or assaults alleged to have been

committed by each accused upon the deceased. The defence

inquired whether persons other than the accused had

participated in the killing of the deceased. The State

answered affirmatively, and went on to say:-

"....die beskuldigdes was deel van h groep mense

wat die oorledene aangerand het, maar die

identiteit van hierdie persone is aan die Staat

onbekend so ook wat elkeen gedoen het. Dit word

wel beweer dat hulle die oorledene onder andere

gejaag, gevang en op die grond neergegooi,

geskop, met stokke geslaan, op haar gespring

en/of aan die brand gesteek het."

In response to a further inquiry the State affirmed (in

para 6) that in order to establish criminal liability on

the part of the accused it relied on the doctrine of common

purpose; and (in para 9.5) it furnished the following

particulars of the facts from which such common purpose was

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to be inferred -

"Die bestaan van h gemene opset en die

beskuldigdes se aanhang daarvan word van onder

andere die volgende feite afgelei:

(a) Die oorledene is aangeval deur 'n groep

mense waarvan die beskuldigdes deel

uitgemaak het en/of waarby die

beskuldigdes hulle gevoeg het;

en/of

(b) Die aanvallers van die oorledene,

waarby die beskuldigdes ingesluit is,

het tydens die aanranding h kring om

die oorledene gevorm;

en/of

(c) Die oorledene is aangerand deur die

beskuldigdes soos in par. 1 supra

vermeld en/of die ander lede van die

groep soos in par. 6 supra vermeld,

gesamentlik en/of in teenwoordigheid en

ten aanskoue van die een of ander lede

van die groep;

en/of

(d) Tydens die aanranding soos voormeld het die groep mense waaronder een of ander

van die beskuldigdes deur hulle gedrag

en/of gebare en/of die uitering van

woorde mekaar en andere aangespoor

en/of aangepor om die oorledene aan te

rand en/of dood te maak.

Onder andere is woorde met die volgende strekking geuiter:-

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(i) Sy moet geslaan word en/of

(ii) Slag haar af en/of

(iii) Sell-out; beriggewer en/of

(iv) Laat sy brand/gebrand word."

The trial was heard by a court consisting of

HARTZENBERG, J and two assessors. The accused, who were

represented by counsel, all pleaded not guilty, and at the

close of the State case each accused testified in his or

her own defence. For the sake of convenience reference to

individual appellants will hereafter be made by using the

number which he or she bore as an accused at the trial.

The trial court acquitted accused nos 6 and 7. The

remaining accused (the nine appellants) were, as already

mentioned, each found guilty of murder with extenuating

circumstances. They were sentenced by the trial judge on

24 June 1987. In what follows I shall indicate the age of

each appellant with reference not to the date of sentence

but as at the date on which the deceased was killed.

Accused no 1 , a woman aged 27, was sentenced to

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ten years imprisonment. Accused no 2, a woman aged 23,

was sentenced to imprisonment for life. Accused no 3, a

man aged 26, was sentenced to fifteen years imprisonment.

Accused no 4, a man aged 26, was sentenced to imprisonment

for life. Accused no 5, a woman aged 31, was sentenced to

ten years imprisonment. Accused no 8, a man aged 28, was

sentenced to ten years imprisonment. Accused no 9 was a

schoolgirl in standard six who shortly before had turned

fourteen. She was sentenced to imprisonment for five

years, half of her sentence being conditionally suspended

for a period of five years. Accused no 10, a man aged

21, was sentenced to imprisonment for life. Accused no

11, a youth aged 15, was sentenced to twelve years

imprisonment.

The case is as appalling as it is unusual. It

is appalling because it involved a prolonged and utterly

barbaric attack upon a defenceless young woman. It is

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unusual because during the trial the court had to contend

with few of the knotty problems of identification which

usually arise in a prosecution for murder following upon a

killing by mob violence. Problems of identification were

largely eliminated for the following reason. The deceased,

having been pursued, caught and brought to the ground, was

set alight. The attack upon her which ensued, and which

continued until she had been butchered to death, was

recorded by means of video cameras. The

resultant video film provides grim and incontrovertible

evidence of what physical acts were performed by those of

the appellants who participated áctively in the attack upon

the deceased. Upon the screening of the video film the

overt acts of violence are there for all to see, while the

accompanying sound track conveys to the listener a distinct

impression of the mood of the mob hounding its helpless

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victim. In the result the scope of . the inquiry at the

trial was largely confined to the state of mind and

intention of each idehtifiable aggressor, and the nature

and extent of his or her criminal liability for the death

of the deceased.

Among the witnesses for the prosecution there

were two news cameramen who had attehded the funeral in

question. At the request of the State, and with the

consent of the defence, their names were not revealed when

they respectively took the witness-stand. They will be

referred to respectively as "Cl" and "C2". Cl worked for

an overseas television network and he was armed with a

video camera and a sound recorder. C2 was a freelance

photographer. He had a video camera and he was

accompanied by a sound-recording assistant. From the

stage of the assault already indicated, Cl and C2 made

video tape recordings at.the scene of the assault. At the

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trial an edited video film was handed in and screened a

number of times. This was done after HARTZENBERG, J had

dismissed an objection by the defence to the admissibility

of the exhibit. It is unnecessary here to recount the

circumstánces in which the exhibit was produced or how it

came into the possession of the South African Police. As

a result of a number of important admissions made on behalf

of the appellants during the course of the trial, by the

time the stage of argument was reached in the court below

the issue of the admissibility of the video film had become

one of academic interest only. In this court the

admissibility or otherwise of the exhibit formed no part of

the argument advanced on behalf of the appellants. In its .

judgment the court below recorded the following finding:-

"Ons is tevrede dat indien h persoon op die

film geëien kan word, sodanige identifikasie

aanvaar kan word, net soos wat dit aanvaar kan

word dat mense die dinge gedoen het wat op die videoband uitgebeeld word."

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The correctness of this finding was not challenged by

counsel for the appellants. Also handed in at the trial

was a series of still photographs of certain scenes

recorded by the videó cameras. These photographs were

incorporated in exh "F" which contains eleven groups of

photographs. Each group of photographs in exh "F"

appertained to a particular accused and was given a number

corresponding with the number of such accused.

Mention has already been made of the fact that

the video film begins when the attack upon the deceased is

already well under way; the initial stages of the assault

are not depicted. At the trial it was further common

cause that due to the editing of the original video tapes

the scenes unfolding in the video film do not all occur in

a proper chronological order. This irregular sequence

becomes obvious upon a screening of the film. What was

done at the appeal stage in order to put beyond dispute the

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true sequence of the events will be mentioned hereafter.

A State witness at the trial was Mr A A Mahlangu,

whose work it is to train interpreters. He is proficient

in both Zulu and Afrikaans. Having viewed and listened to

the film Mr Mahlangu prepared a transcript of what he had

seen and heard. The transcript was handed in at the trial

as an exhibit. It incorporates a translation from Zulu

into Afrikaans of those utterances in the sound track which

are in the Zulu language.

Not surprisingly the video film played a pivotal

role at the trial. It likewise loomed large in argument

before this court. For a proper grasp of the essential

facts of the case, and in particular for the purpose of

assessing the disposition and frame of mind of the mob

surrounding the deceased after she had been set afire, it

is, I consider, essential to view and to listen to the

film. This court did so on a number of occasions shortly

13

before the hearing of the appeal. The written word can

but imperfectly convey the dreadful impact of what is

portrayed and heard upon a screening of the video film.

However, a concise and accurate verbal description of the

film and its sound-track is to be found in the judgment of

the court below. It is necessary to quote it in full. I

preface the quotation by mentioning two matters which are

common cause. The first is that the name "Joel" is a

reference to det sgt Joel Msibi of the South African

Police, the man who was believed to be the lover of the

deceased. (Msibi who was a State witness denied that the

deceased had been his lover.) The second is that the name

"Linda" is a reference to accused no 4. The learned judge

gave the following description of the video film:-

"Die videoband....beeld onder andere die volgende

uit: 'n groep mense word gewys en ten spyte van 'n

gepraat kan 'n man wat sê 'Move in, move in'

gehoor word. Iemand sê 'Msheni'; dit beteken

'Laat sy geslaan word'. Die oorledene wat aan

die brand is, kan in 'n lêende posisie gesien

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word. Sy kom tot in 'n knielende posisie en

probeer met die flenters van 'n reeds verskeurde

romp haar onderstewe bedek. Sy word van regs af.

deur 'n vrouepersoon geskop sodat sy val. Sy kom

weer in 'n hurkende posisie en word deur 'n man van

voor teen die bors en gesig geskop. Weer val sy

om en weer probeer sy orent kom, maar word dan

van links deur 'n man teen die kop geskop. Rook

kan op haar kop gesien word en vlamme kan op haar

kop en haar klere gesien word. Sy val agteroor.

Daar word op haar getrap. Sy word met klippe

gegooi. Sy word met langwerpige voorwerpe

geslaan. Sy word op die kop getrap. Die

woorde 'Come in, come in' word gebesig. 'n Man

spring in die lug en kom met sy voet op haar nek

af. Sy lê met haar gesig na die grond. Iemand

besig die woord 'Com' wat 'n verkorting is van

'Comrade'. Sy word weer eens geskop. Iemand

skree 'Bopa, bopa'. Dit beteken 'Gee iemand 'n

kans om iets te doen.' Sy word deur 'n vrou met

'n rooi pet geslaan met 'n langwerpige voorwerp.

Die woorde 'Ho, ho' en 'Ho man hashutwe' wat

beteken 'Hokaai, laat kiekies van haar geneem

word' kan gehoor word. Daar is 'n malende skare .

rondom haar en die Zoeloe-ekwivalent van die

woorde 'Laat sy afgeslag word' kan gehoor word.

Goed word na haar gegooi deur die vrou met die

rooi pet. Iemand sê in Zoeloe 'Brand haar'. 'n

Man met 'n geruite hemp se mond beweeg en hy

maak handgebare. Sy word herhaaldelik op die

kop geslaan en getrap. Die woord 'Let him die'

en 'The bitch' kan in die lawaai onderskei word.

Sy word deur verskeie mense geskop en getrap en

in Zoeloe word geskree 'Laat haar opvlam' en

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'Laat sy verbrand word'. 'n Jongman met 'n geel

hemp, 'n swart kortbroek en 'n rooi kledingstuk om

sy middel verskyn prominent in die beeld en hy

skop haar verskeie kere teen die kop terwyl van

die skare haar skop. Daar word geskree 'Viva,

viva Mandela' en 'Let him burn'. Daarna lê sy

tussen die skare met 'n vuur op haar.

Die volgende toneel is waar sonder die vlam wat

so pas vermeld is, sy lê en deur 'n jongman met

'n stok geslaan en geskop en getrap word. 'n Klein

seuntjie slaan haar met 'n voorwerp. Dan kom

'n man met 'n rooi broek en 'n wit trui aangedraf met

'n massiewe klip in sy hande. Hy laat dit op

haar bors val en die woorde 'Ja, dankie maka

bulawe' wat beteken 'Ja, dankie, laat sy

doodgemaak word' kom uit die skare. Dieselfde

klip word deur die jongman wat haar met die stok

geslaan het, opgetel en weer op haar bors laat

val. Histeriese vrouestemme word gehoor wat

skree 'Linda, Linda, enthloko, enthloko'. Dit

beteken 'Linda, Linda, op die kop, op die kop'.

Die klip word dan deur die man met die rooi broek

en 'n ander een opgetel en op die oorledene se

bors laat val. Die woord 'Ama tyre' wat

'buiteband' beteken kan gehoor word. Iemand sê

in Zoeloe, 'Dit is jou koek hierdie, Joel' en ook

'Waar is 'n buiteband sodat ons dit plaas, dit sal

self brand'. Die woorde 'Please don't shoot us,

Kosati' word gebesig. Dit is bedoel om te

beteken 'Moet ons asseblief nie afneem nie.'

Iemand sê dan in Zoeloe, 'Begin met Joel se koek'. Die man met die rooi broek sê 'Moja',

'n Swartmaaktaalwoord wat beteken 'Dit is mooi', en

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wys met sy duim na bo soos wat die Romeinse

keiser soms in die Colosseum gedoen het. Vuur

word gemaak op die oorledene se buik en dye.

Iemand sing in Zoeloe 'Jou koek, Joel.' Die

Zoeloewoorde wat beteken 'Hy of sy het die

hasepad gekies' kan gehoor word, asook die woorde

vir 'Hy of sy sal kom, ek sal teenwoordig wees,

julle moenie 'worry', julle moenie 'worry' en

'Ek is nie bang vir sulke dinge van die stryd

nie, ons broers en susters is in die tronke'.

Nog vuurmaakgoed word op die oorledene gegooi.

'n Man met 'n klip in sy regterhand kom nader en

die woord 'Shaya' wat 'Slaan' beteken word

gehoor. Die man gooi die klip en mis. 'n Ander

man tel die klip op en tref. Die eerste een tel

weer die klip op en slinger dit met beide hande

na die liggaam waarop die vuur steeds brand. h

Stem wat in Zoeloe skree 'Los julle die vuur uit,

los julle die vuur uit' is hoorbaar. Op daardie

sombere noot eindig die band."

After the video film had been admitted in

evidence certain admissions were made on behalf of seven of

the nine appellants. Accused no 2 admitted that she saw

some "inflammable fluid" being thrown upon the deceased;

that thereafter she saw flames on the deceased; that she

struck the deceased with an object; that she kicked the

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deceased; and that she jumped upon the deceased. Accused

no 3 admitted that while standing in the crowd he tramped

upon the deceased, but he added that this was an

involuntary action as the result of having been pushed.

He admitted that he had been present when two persons

dropped a stone upon the deceased. Accused no 4 admitted

that he had dropped a stone upon the deceased's body; and

that thereafter, and with the help of a youth, he picked up

the stone and again dropped it upon the deceased; and that

he was the person depicted upon the still photograph exh "F

4.3". Accused no 5 ádmitted that during the assault upon

the deceased she kicked the deceased'. Accused no 9

admitted that she witnessed the assault upon the deceased;

that she saw flames on the deceased; that she picked up

the branch of a tree and struck the deceased therewith;

and that she also kicked the deceased. Accused no 10

admitted that he had witnessed the assault upon the

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deceased; that her assailants said that she was an

informer; and that he (accused no 10) had kicked the

deceased on her buttocks and legs. Accused no 11 admitted

that at the place and time of the assault he had struck the

deceased with a stick; that he kicked the deceased; and

that he placed a stone on the deceased.

Since in the video film the sequence of events is

distorted this court during argument requested counsel on

each side to prepare and file with the registrar further

heads of argument reflecting, in so far as the nine

appellants are concerned, the correct chronology of events;

and indicating the precise stage of the assault at which

each appellant was present at and/or participated in the

assault, together with a description of the nature and

extent of such participation. After argument had been

concluded counsel on both sides co-operated in the

preparation of a single document (to which reference will

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be made as exh "X") which embodies the desired information.

We are indebted to counsel for their fúrther labours.

Most of the matter contained in exh "X" is

common cause. It also deals with matter in regard to

which the State and the defence make conflicting

submissions. Some of the matters thus in dispute will be

mentioned, and resolved, in the concluding part of this

judgment. In truncated form, and omitting reference to

issues in contention between the appellants and the

respondent, I proceed in the paragraphs numbered (1) to

(63) hereunder, to set forth the true seguence of events as

reflected in exh "X":-

(1) The deceased lies on the ground surrounded by a

crowd of people. There are some flames on her

clothing and on her head; and on the ground near

her.

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(2) A person wearing green trousers tramples upon the

deceased.

(3) The deceased is in a sitting position. There

are still flames on her back which is partially

bare. There is clothing oA the upper part of

her torso. Her lower body has been stripped of

clothing. There is smoke in her hair.

(4) The deceased tries to pull clothing over her

exposed buttocks. Accused nos 2, 9 and 11 are

present. Accused no 2 kicks the deceased on the

head. The deceased falls forward (away from the

camera).

(5) Accused no 9 jabs at the deceased with her right

foot while the deceased lies on the ground.

Flames reappear on the deceased's head and there

is smoke in her hair. She raises herself into a

kneeling position and the lower body of accused

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no 11 is visible.

(6) The deceased, in a kneeling position, lurches to

her left.

(7) Accused no 2 kicks the deceased on the head and

she falls to her left side.

(8) A man in a red shirt kicks the deceased on the

head. Flames reappear as the deceased falls

onto her back. Accused no 11 has his arm aloft

while accused nos 8, 9 and 10 stand in the front

of the crowd. Accused no 10 appears to be

saying something.

(9) Using a stick accused no 11 strikes the deceased

on her legs some four times. The deceased lies

on her back. There are flames on the ground.

(10) The man in the red shirt kicks the deceased on

the head and she rolls onto her right side.

(11) Accused no 2 strikes the deceased with a length

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of hosepipe.

(12) Using a stick or a branch accused no 9 strikes

the deceased approximately seven times on her

lower body. The deceased rolls cmto her

stomach.

(13) A man with a red shirt around his waist tramples

upon the deceased's head.

(14) Accused nos 2 and 9 are still hitting the

deceased.

(15) The deceased lies on her back while a man in a

purple/blue shirt and a woman dressed in blue

jump upon the deceased.

(16) With the length of hosepipe accused no 2

administers a further blow to the deceased. Up

to this stage accused no 2 has struck in all some

six blows with the hosepipe to the deceased's

head and shoulders. During this attack the

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deceased tries to shield herself with her arm.

(17) The deceased lies on her right side with pieces

of clothing on her arms and around her waist.

There is a fire on the ground next to her.

(18) The deceased pushes herself up a short distance,

raises her head, and rolls over to her right.

(19) A man clad in a red shirt and blue trousers kicks

the deceased on the head, as a result of which

the deceased falls onto her right side or her

back. Accused nos 3, 8, 9 and 11 are seen in

the crowd. Using a stick a man in a blue and

white striped shirt ("the man in the striped

shirt") strikes the deceased on the head a number

of times. A woman in a red cap twice throws an

object at the deceased.

(20) Accused nos 3, 8, 9 and 11 are in front of the

crowd. Accused nos 3, 8 and 9 make movements

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with their hands.

(21) Accused nos 3 and 9 are seen close-up. Accused no 11 executes a trampling movement but at this

stage the deceased is not visible.

(22) Accused no 10 tramples on the deceased's

buttocks. Accused no 9 executes a prodding or

trampling movement on the deceased. The man in

the striped shirt strikes the deceased on her

head with a stick.

(23) Accused no 1 appears and kicks the accused once

on the buttocks. Accused no 1 appears to be

saying something. Thereafter she disappears.

(24) Accused no 10 trampíes on the deceased's

buttocks. The man in the striped shirt again

strikes the deceased with a stick.

(25) Accused no 10 tramples on the deceased's

buttocks. Accused no 9 tramples approximately

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three times on the deceased's buttocks. Accused

no 10 again tramples a number of times on the

deceased's buttocks. The woman in the red hat

tramples on the deceased's buttocks.

(26) Accused no 10 again tramples on the deceased.

By this stage accused no 10 has executed in all

some six trampling movements on the deceased.

(27) Accused no 8 stretches out his foot which lands

upon the deceased's lower back.

(28) Accused no 3's foot makes contact with the

deceased's body. The woman in the red cap kicks

the deceased on the buttocks. Accused no 3

moves out of the inner circle. The man in the

striped shirt strikes the deceased on the head

with a stick.

(29) The foot of accused no 8 slips off the deceased's

body as accused no 8 moves backwards.

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(30) The deceased lies on her stomach with a strip of

material around her waist. Her lower body is

naked. Spmeone strikes the deceased on her back

with a stick.

(31) A youth with a red jersey tied around his waist

("the youth") jumps upon the deceased's head.

(32) Accused no 2 jumps upon the body of the deceased.

(33) The youth kicks towards the deceased's head (and

possibly misses).

(34) Accused no 11 stamps on the deceased's

back/shoulder.

(35) A man clad in blue trousers tramples upon the

deceased's back.

(36) The deceased is repeatedly trampled upon her

buttocks and lower back.

(37) Accused no 5 tramples once upon the deceased's

buttocks.

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(38) A woman clad in a white jersey kicks the deceased

twice on her left side. Accused.no 9 prods or

kicks the deceased with her foot.

(39) Accused no 5 tramples upon the deceased's

buttocks. The woman in the white jersey kicks

the deceased for the third time.

(40) The youth uses the heel of his shoe to kick the

deceased on her head. Accused no 9 prods/kicks

the deceased with her foot.

(41) The woman in the white jersey again kicks the

deceased.

(42) The man in the striped shirt tramples upon the

deceased's upper back.

(43) The deceased lies on her stomach. Accused no 9

tramples upon the deceased's lower back. Up to

this stage accused no 9 has prodded or kicked the

deceased on the buttocks and back some seven

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times.

(44) The deceased lies on her back with her lower body

naked. Someone strikes the deceased with a

stick in the area of her groin.

(45) The youth kicks the deceased a number of times in

the groin.

(46) A woman clad in Bermuda shorts strikes the

deceased once with a stick.

(47) A woman in a blue dress kicks the deceased.

(48) A man in a blue shirt approaches the deceased.

Accused no 11 appears and executes kicking

movements. The man in the blue shirt kicks the

deceased in her midriff. Other persons strike

the deceased with sticks.

(49) The deceased lies on her back. The lower part

of her body is covered.

(50) Accused no 8 is seen in the crowd as a spectator.

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(51) Accused no 11 walks towards the deceased and

strikes her with a stick. A small boy does the

same.

(52) Accused no 11 then tramples upon the deceased's

stomach three times.

(53) Accused no 4 appears with a stone and drops it on

the deceased's stomach. The stone slides off

onto her left hand side.

(54) Accused no 11 lifts the stone and places it upon

the deceased's right shoulder.

(55) Accused no 4 and a man in a blue shirt lift the

rock and drop it on the deceased's chest. The

rock comes to rest upon her right shoulder.

(56) The deceased lies on her back with the stone on

her left shoulder and flames on her left side.

(57) The deceased lies on her back with the rock on

her left shoulder. There are twigs on the lower

30

half of her body. Some substance or material is

burning close to her body. Some twelve

spectators look at the deceased. One of them is

accused no 4. He smiles at the camera.

(58) Accused nos 3 and 11 are seen as spectators.

Accused no 11 stands near the body of the

deceased holding a stick.

(59) Accused no 11 arranges paper or kindling on the

twigs, some of which are alight.

(60) Accused no 10 takes a stone, makes as if to throw

it, and then momentarily restrains himself.

Thereafter he in fact throws the stone at the

deceased, but he misses her.

(61) A person wearing a white hat throws a stone at

the deceased.

(62) Accused no 10 again throws the same stone at the

deceased.

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(63) Accused no 10 again throws the stone in the

direction of the deceased.

Next it is necessary to consider the medical

evidence led at the trial in connection with the cause of

the deceased's death, the possible stage of the infliction

of those injuries which were mortal, and the likely time of

. actual death. A post-mortem examination on the body of

the deceased was performed by Dr V D Kemp who is a district

surgeon and also the head of the department of Forensic

Pathology at the University of the Witwatersrand. Dr Kemp

was called as a State witness. On the legs and head of

the deceased Dr Kemp found superficial burns. On every

part of her body, but especially about the head and face,

there were multiple areas of abrasion. Certain of the

abrasions were scrape-like and suggested that the deceased

had been dragged along the ground. On both her buttocks

there were tram-track abrasions indicating that she had

32

been beaten with an instrument like a stick. There was a

fracture of the fifth left rib in front and inter-costal

haemorrhages on the left side. There was a haemorrhage

around the left kidney. Dr Kemp found sub-pleural

petechial haemorrhages, which indicated the possibility

that some degree of asphyxia might have been associated

with the deceased's death. Dr Kemp found that the

deceased had died from a fractured skull, subdural

haemorrhage and cerebral contusion. The fracture of the

skull was a very severe one involving the base of the skull

and both frontal bones.

Dr Kemp was shown the video film. Noticing that

thé movements of the deceased in the opening scenes of the

film were sluggish, Dr Kemp concluded that the deceased

might have sustained cerebral contusion and experienced

cerebral haemorrhage already before the happening of the

events portrayed in the video film. Accordingly Dr Kemp

33

was unable to exclude, as a reasonable possibility, that

the deceased might already have been fatally injured before

any one of the appellants laid a finger upon her.

Upon the hypothesis that such fatal injury had

already been sustained by the deceased before the stage of

the assault at which the video film starts, Dr Kemp

testified further that some of the assaults depicted in the

video film might have exacerbated the earlier mortal injury

or injuries and thus have expedited the deceased's death.

However, Dr Kemp was unable to express any firm. opinion as

to whether the deceased's death had in fact been so

hastened; and, if it had, what particular assault

portrayed in the film had so hastened it. The tenor of

the medical evidence has important legal implications in

determining what criminal liability attaches to those of

the appellants who took part in the attack on the deceased.

Dr Kemp was unable to determine at what stage of

34

the events depicted in the video film death ensued. He

said, however, that at the stagé when she lay on her back

with the rock on her left shoulder (see para 56 of the

summary of exh "X", supra) she might well still have been

alive.

Next there must be examined the evidence given by

each of the appellants. Accused no 1 told the trial court

that before going to the funeral she drank a bottle of beer

which left her "just happy warm." During the service

she heard a noise and she saw a group of people running out

of the cemetery. She joined the group which was standing

in a circle around the deceásed. People were jostling one

another and remarking that they had found an informer.

She pushed her way through to the inner circle and there

observed what was happening. She saw the deceased lying

on the ground. There were no clothes on the upper part of

her body. Something resembling a jersey was burning.

35

Later the flames were extinguished and only smoke was given

off. People were hitting the deceased with sticks; and

they were kicking her on the body, legs and buttocks.

According to accused no 1 she herself kicked the deceased

once on her buttocks. She did so because she became angry

when she heard that the deceased was an informer; and she

wanted the deceased to feel pain. During her evidence in

chief she was asked whether, having regard to the sustained

assault witnessed by her, it had occurred to her that the

people attacking the deceased would cause her death. She

said that this had not occurred to her. In cross-

examination she said that before she herself kicked the

deceased she had watched what was going on for about half a

minute, during which time the assault upon the deceased had

been a continuous one. She said that she had not thought

with what intention other members of the crowd assaulted

the deceased. She was unable to say what the mood of the

36

crowd was. As to the probable consequences of the

assault upon the deceased, accused no 1 _said that while

she thought that the deceased was experiencing pain the

possibility that the deceased would be injured never

crossed her mind.

Accused no 2 gave the following account of her

participation in the assault upon the deceased. She knew

the deceased personally and rumours had reached her that

the deceased was an informer and the lover of Joel Msibi.

Before the funeral accused no 2 drank two glasses of beer

which did not affect her. She had been in the last group

of mourners approaching the cemetery. Before she reached

the gate to the cemetery she saw a crowd and people were

saying "Burn her, burn her". Accused no 2 pushed her way

through the crowd and found that people were assaulting the

deceased whose hair and clothing were alight. Accused no

2 testified that she thought that the deceased was being

37

beaten because she was an informer. Her attackers were

striking the deceased with sticks, and they were kicking

her. The sight of the assault excited and angered accused

no 2, and it aroused in her a desire to make the deceased

feel pain. According to accused no 2 she then kicked the

deceased; jumped on her; and struck her with a length of

hosepipe "with all my might." At a later stage accused no

2 saw accused no 4 drop a rock onto the ribs of the

deceased. Thereafter she saw accused no 4, assisted by

another person, drop the rock upon the decased for a second

time. At that stage, so testified accused no 2, she felt

pity for the deceased; and she tried unsuccessfully to

remove the rock. Asked whether the deceased was then dead

or alive accused no 2 replied that her thought at the time

was the deceased had fainted. She remained at the scene

for a while in order to see whether the attack would

continue, and then she went home. In cross-examination

38

accused no 2 was asked what she considered the intention of

the rest of the crowd to be. She replied _"I just thought

they were making herfeel the pain." Asked whether she

contemplated the possibility of serious harm to the

deceased as the cumulative effect of the assaults, her

answer was:-

"No, because there was nothing which could injure

a person."

She was asked with what intention she had thought that

accused no 4 dropped the rock upon the deceased. She said

that the thought had never occurred to her. Towards the

end of her cross-examination the following evidence

emerges:-

"And you mentioned that you were like a mad

person?

Yes.

Especially when you used the hosepipe? Yes.

Did the madness come qver you because you had a

feeling of hate towards this informer? Yes,

because she working with the police, she was an

'impimpi'."

39

The evidence of accused no 3 came to the

following. On the day in question he drank much liquor,

and by the time he joined the funeral, although hê could

walk straight, he was drunk. While he was standing at the

gate to the cemetery he noticed people standing in á

circle. He approached the circle to investigate and he

pushed his way through a jostling throng until he saw the

dêceased lying on the ground. She was being severely

assaulted. She was being kicked on the head and on the

body; and people were hitting her with sticks. In trying

to get away from the people surrounding the deceased, so

testified accused no 3, he lost his balance which was

already unsteady from drink; and his foot landed on the

shoulder of the deceased and slid across her body.

Accused no 3 said that he had no intention of kicking the

deceased. The video film shows that while accused no 3

was viewing the assault upon the deceased, he gestured with

40

his hand. Accused no 3 sought to explain this gesturing

by saying that it represented an attempt on his part to

restrain the crowd from further assaulting the deceased.

Accused no 4 told the trial court that on the day

in question he consumed a great deal of liquor. He was

unable to indicate how much. Although the liquor made him

stagger he said that his mind "was working." Having

joined the funeral procession he entered the cemetery.

People ahead of him pointed to something happening at their

rear, whereupon accused no 4 and others went to

investigate. At a distance of some eight paces he

observed an assault upon a female person. He witnessed

the assault for four or five minutes. The victim was

being trampled upon, kicked, and struck with sticks.

People standing next to him said that she was Maki, the

lover of Msibi. According to accused no 4 he was unable .

to see whether it was in fact Maki because her face was

41

covered with dust; her clothes were torn; and her hair

had been burnt. He thought that the woman was being

assaulted because she was an informer. Afterward he heard

a voice saying "It is now finished", from which he inferred

that the victim was already dead. He moved to within two

paces from the woman to see whether in fact she was the

Maki that he knew. He then realised that the victim was

neither breathing nor moving. He determined that she was

not breathing by looking at her stomach. Noticing the

presence of a cameraman, so accused no 4 testified, he

decided "to do something that will draw people's

attention." Accordingly he fetched a rock and threw it

upon the deceased's body. Assisted by another, accused no

4 then dropped the same rock on the deceased a second time.

He explained the second episode in the following words:-

"....because I was very happy and I had consumed

liquor, and also when I heard people saying

'Linda, Linda, enthloko' meaning 'Linda, Linda,

on the head', I then thought the people were

42

appreciating what I had done and that I should do

it."

Accused no 4 went on to say that he was excited and pleased

at the prospect that he might appear cm television. He

made a joke, involving a reference to Joel's cake burning,

which made people laugh. In retrospect, so he said, his

actions on the day in question were those of a madman. In

cross-examination he said that when he left the shebeen he

was staggering and could hardly stand. He was asked what

he thought the people assaulting the deceased wanted to

achieve. He answered that he had not thought of that.

When he picked up the rock the effect upon him of the

liquor had not worn off much, and he was staggering

slightly. He conceded that the fact that the victim of

the assault was an informer made him angry, but he denied

that he had on that account decided to do anything.

Accused no 4 was unable to explain why he had made

references to "Joel's cake"; and he dismissed his

43

utterances as simply nonsense.

There is a portion of the cross-examination of

accused no 4 which is of crucial importance in the

assessment of his credibility. It involves the number of

occasions on which he dropped the rock onto the deceased.

The video film shows that accused no 4 dropped the rock

onto the deceased twice: for the first time on his own and

for the second time assisted by another. But in fact

accused no 4 thereafter dropped the rock onto the deceased

for a third time. The third occasion is not portrayed in

the edited video film; but it is reflected quite clearly

in the still photographs. During his evidence in chief

and in the initial stages of cross-examination the

testimony of accused no 4 was clear and explicit on the

point that he had dropped the rock upon the deceased only

twice. When the possibility of a third occasion was first

mooted in cross-examination, accused no 4 promptly and

44

firmly rejected it. When confronted with still photographs

he was finally constrained to admit that he must have

dropped the rock upon the deceased three times; but he

claimed to have no memory whatever of the third occasion,

and he expressed great surprise at the revelation.

The version given by accused no 5 was the

following. On the day in question she drank a good deal

at a shebeen. When she left the shebeen she was drunk and

staggering somewhat, but "she would see what she was

doing"; and she was not so drunk that she could not

remember what she was doing. She joined the funeral

procession on its way to the cemetery, and at its gate she

heard a noise behind her. People were shouting "Here is

an informer". She went to investigate and forced her way

through the crowd until she saw the deceased, who was known

to her by sight, lying on the ground. People were kicking

the deceased all over her body and beating her, mostly on

45

the legs and buttocks. The kicks were delivered with

force, and many people were taking turns in kicking the

deceased. One or two people jumped with both feet onto

the deceased's back. Accused no 5 testified that she

herself kicked the deceased twice. She did so because she

was angry and she wished the deceased to feel pain. In

cross-examination accused no 5 said that she was punishing

the deceased as one would punish a child. She maintained

that at the time she witnessed the assault upon the

deceased the thought that she might be assaulted until she

died did not cross her mind. Although the deceased was

hurt she was not seriously injured. Although the attack

to which the deceased was subjected was a severe one, so

testified accused no 5, it was not so severe that, as she

put it "the soul would leave the body."

Accused no 8 gave the following version of what

he saw and did in relation to the deceased. On the day of

46

the funeral he drank at a shebeen before breakfast. He

could not recall whether he consumed any liquor after his

breakfast. He said. that when he joined the procession of

people winding their way to the cemetery he was under the

influence of liquor but he was still able to walk. He was

unable to get into the cemetery. Standing near its gate

he heard a noise to the rear as if a fight were in

progress. He proceeded to the group of people making the

noise and pushed his way through to the front to see what

was happening. When he penetrated the inner circle he saw

a female being assaulted. She was lying on the ground and

she was tring unsuccessfully to get up. As soon as she

managed to get into a kneeling position she would be

knocked down again. Accused no 8 heard the word "impimpi"

mentioned and the words "Let her be beaten, let her be

killed" being used. The deceased was being kicked on her

body and head. There were f lames on her back and

47

smoke was issuing forth from her head. Accused no 8 saw a

woman jump on the deceased. According to accused no 8 the

deceaséd was not known to him. He said that he was not

angry with her and that he had no intention of assaulting

her. Accused no 8 testified that in raising his right

hand he was making a gesture to signify to the deceased's

attackers that they should stop assaulting her.

Next he noticed a man with a video camera. What

then took place was described by accused no 8 in the

following words:-

"At that stage I then thought that I should pose

for that person who was taking a photo and I felt

excited and happy and the liquor had affected

me. I then pushed forward and then put my foot

on her buttocks Somebody pushed me and I

lost my balance and my foot was removed from her

buttocks, I then proceeded watching."

When the intensity of the assault upon the deceased had

lessened somewhat, so proceeded the evidence of accused no

8, he noticed that the deceased's skirt was lying on the

48

ground. He picked it up and placed it.over the deceased.

Accused no 8 then saw a man appearing with a rock which he

dropped onto the deceased's chest. The same man, assisted

by another, repeated this action. Accused no 8 then

decided to leave.

Accused no 9 told the trial court that the

deceased was known to her. Prior to the funeral she had

heard rumours to the effect that the deceased was an

"impimpi" and that she was the lover of det sgt Msibi. On

the day in question she joined the procession to the

cemetery, but because it was already full she went no

further than its gate. She saw a group of persons

assaulting someone; and she heard.it being said that the

victim was an "impimpi". She squeezed herself through the

group and then saw that it was Maki who was being

assaulted. The deceased was kneeling on the ground and

people were hitting her with sticks and kicking her on the

49

head, body and legs. The deceased's clothing was burning.

Her hair had already been burnt and it was smoking. The

deceased was kicked so hard that she fell to the ground.

Thereupon, so testified accused no 9, at a time when the

deceased was either kneeling or lying on the ground,

accused no 9 herself intervened. She kicked the deceased

f irst on the head and then on the body; and then she

proceeded to hit her with a stick. Accused no 9 said that

she remained upon the scene of the assault for some 10 to

15 minutes thereafter. She then heard some talk of the

police whereupon she decided to leave.

In cross-examination accused no 9 said that as

far as she herself was concerned it was a terrible thing to

burn a person; but at the time she did not think what

result the attackers of the deceased had wanted to achieve

by setting her alight. She said that in assaulting the

deceased she had followed the example of older people.

50

She thought that the crowd wanted the deceased to feel

pain. When she arrived at the scene of the assault the

deceased was kneeling. Somebody kicked her on the head.

The deceased brought her head up, and then she was kicked

again on the head. A third person then kicked her. The

third kick was so hard that the deceased fell to the

ground. Accused no 9 conceded that having witnessed these

three kicks she then began her assault by kicking the

deceased on the head. As to the probable effect of the

kicks preceding her own assault accused no 9 said the

following in cross-examination:-

"I put it to you that from those kicks that let

somebody fall down, she could die. Do you agree?

I cannot dispute that.

To your own personal knowledge, would you

say that you knew at that stage that kicks ás

hard as those delivered to the head can kill a

person? No I did not know that."

After she kicked the deceased for the last time, so

testified accused no 9, she remained at the scene of the

51

attack for approximately ten to fifteen minutes, during

which time the deceased was still being assaulted.

The evidence of accused no 10 may be summed up as

follows. The deceased was known to him. He had heard

rumours that she was an informer and that she was having a

love affair with det sgt Msibi. Between 8 and 9 am on the

day of the funeral he drank two beers at a shebeen. He

spent the rest of the morning buying groceries. He joined

the procession on the way to the cemetery. While he was

within the cemetery he heard a noise to the rear and he

decided to investigate. A crowd of people were standing

in a circle. With difficulty he forced his way through to

its centre where the deceased was being assaulted.

Reference was made to her as an "impimpi" or a "sell-out."

The deceased was kneeling on the ground. There were

flames on her back and smoke was coming from her head.

The deceased was kicked in the face as a result of which

52

she fell and the fire on her back was extinguished. She

was being kicked both on the body and on the head.

Accused no 10 then decided that he too would assault the

deceased. He testified that he kicked the deceased while

she was lying on her stomach, but that it was difficult for

him to say how many times he did so. His intention was to

inflict pain upon the deceased. Before the stone was

dropped onto the deceased she was beaten with sticks.

During his evidence in chief accused no 10 said that he was

angry with the deceased because she was an informer, and

that he kicked her in order to make her feel pain. He

said, however, that it had not been his intention to kill

her; and that the possibility that the attack on her by

the crowd might result in her death had not occurred to

him. Accused no 4 was known to him by sight. After

accused no 4 dropped the stone on the deceased he (accused

no 10) thought that she was still alive. Thereafter a

53

fire was made on top of the deceased. By that stage, so

testified accused no 10, he thought that the deceased was

dead.

A camera-man appeared and accused no 10 thought

that he should do something to ensure his own appearance on

television. Accordingly he picked up what he described as

"a small stone". He threw it at the deceased but missed

her. He picked up the stone again and upon his second

throw he succeeded in striking the deceased. During

cross-examination it emerged that the size of the stone in

question was rather larger than a cricket-ball; and that

accused no 10 had thrown it at the deceased three or four

times. He said that after the rock had been dropped upon

the deceased he had formed the impression that the deceased

was dead on the strength of the fact that he saw blood on

her head "and that the stone was dropped three times."

During cross-examination accused no 10 emerged as

54

a thoroughly evasive witness. As a typical example of his

hedging I quote the following passage from his evidence:-

"Did you get the impression that she was

seriously hurt when she fell down? She was

seriously hurt where?

You were surprised that she did not get up?

What made me surprised?

When you saw the deceased lying and not get up,

did you get the impression that she was seriously

injured? On that day?"

In the course of his cross-examination accused no 10

testified that at the time of the attack upon the deceased

he had never considered what the intention of the attackers

was; and the possibility that the deceased might die had

not occurred to him. I quote again from his evidence:-

"Apart from thinking of death, did you think of

serious injury perhaps on that day? I thought

that she would get injured and after treatment in

the hospital, she gets cured like other people."

Accused no 11 told the trial Court that he had

not known the deceased at all. When he arrived at the

cemetery on the day of the funeral he stood at the gate.

55

While he was singing with other people he heard a noise to

the rear; people were saying "Hit him, hit him, hit him."

He joined the group from which the noise came, and he heard

people saying "We have found the impimpi." He pushed his

way through the crowd and he then saw people tearing at the

clothes and the hair of the deceased. Her assailants

poured the liquid contents of a bottle over the head of the

deceased, whereafter smoke came from her hair. When he

first saw the deceased she was standing. According to

accused no 11 he was then pushed from the inner circle of

persons surrounding the deceased. He made his way back to

the inner circle and he saw that the deceased was lying on

the ground with a fire burning on the ground close.by her.

He said that the deceased was trying to get up but that she

was unable to do so because she was being kicked on all

sides by her attackers.

Angered by the fact that she was an "impimpi",

56

accused no 11 seized a broomstick and struck the deceased

with it on her left shoulder. He also kicked her in the

ribs. People were jumping on the deceased. Accused no

11 testified that he then kicked the deceased a second

time; and he trod on her back. He saw a camera-man; and

he was pleased at the prospect that he was going to appear

on television. . While the deceased was lying on her back

he "bumped" his foot on her stomach, and hit her with a

broomstick. At that stage, however, he thought that the

deceased was already dead, and he said that in so doing he

was merely acting for the camera-man. He saw the large

stone being dropped on the deceased by accused no 4 (whose

identity was unknown to him at the time). In imitation of

this action accused no 11 himself took the stone and place

it upon the deceased. He saw accused no 4, assisted by

another, again drop the stone on the deceased. At a later

stage, and when there was already a fire burning on the

57

deceased, accused no 11 heaped twigs on her burning body.

At the time when he gave evidence at the trial

accused no 11 was seventeen years old. He had left school

after completing standard one. Despite his youth and lack

of education, however, a reading of his evidence shows, in

my opinion, that accused no 11 has a keen intelligence.

He gave evidence at length, both in chief and in cross-

examination. He was self-possessed in the witness-stand,

but he revealed himself as an evasive and coolly impudent

witness. His resort to quibbling and subterfuge is

reflected, for example, in his dodging of questions

relating to the temper of the mob encircling the deceased.

I quote from his cross-examination:-

" ..can you perhaps remember whether you

noticed what the mood of the crowd was that was

there?

May I just ask you this: can anybody see what is

your mood now?

Unfortunately I am asking the questions in this

court. If you cannot say, you can just say no.

Then I do not understand the question.

58

You cannot say what the mood was? Were the

people shouting, were they angry?--I cannot say

what is your mood now."

Accused no 11 clearly wished to avoid questions regarding

his appreciation of the possible fatal consequences of the

attack upon the deceased -

"Now, your evidence was that you thought what you

were doing was right because the older men were

doing it? Yes.

Did you before you left the scene, did it

cross your mind that the older people or some of

them had caused the death of the deceased?

No, it never occurred to me. I never thought of

that.

Do you have any idea who caused the death of the

deceased? No, I cannot say who it was.

Is it not the people who were there and were

assaulting the deceased?---- I do not know.

What do you think? You have got no idea? No,

I have no idea."

From a reply given by accused no 11 at a later stage of

cross-examination it would seem that the possibility of the

death of the deceased as a result of assault was indeed

59

present to his mind. When he was being questioned with

reference to a particular scene portrayed in the video the

following was said:-

"The reading is 069. Do you know what you did

there at that stage? No, I did not do

anything. I was stopping this boy so that he

could stop kicking the deceased on her private

part.

Why did you want to stop this boy? Because he

was kicking the deceased on her private part and

she could die as a result of that."

So much for the evidence of the appellants

themselves. A further defence witness at the trial was an

associate professor of psychology at the University of

Illinois, Professor Edward F Diener. Prof Diener has made

an intensive study of the psychology of crowds and their

anti-social behaviour. In his evidence Prof Diener sought

to evaluate the behaviour and the moral blameworthiness of

certain of the appellants.

Prof Diener described himself as one of the

60

leading experts on the process of what is known as

"deindividuation." According to the witness this is a

process which produces human behaviour akin to that of a

person who is hypnotised or drunk. Prof Diener's evidence

was that, depending upon the intensity of the particular

process involved, deindividuation may impair or even

destroy the ability of an individual to foresee the

probable conseguences of his actions. Prof Diener was

present at the trial when accused no 4 and accused no 10

testified; and he read a transcript of the evidence given

by accused nos 1, 2, 5 and 9. In addition, and with the

assistance of defence counsel and an interpreter, the

witness conducted interviews with each of the

aforementioned six appellants. In his evidence at the

trial Prof Diener expressed the opinion that it was "quite

plausible" that four of the appellants (accused nos 1, 2, 5

and 10) had been affected by deinviduation to an extent -

61

"....that they did not appreciate that death could

ensue from their actions or from the actions of

the group."

It would appear that deindividuation is

characterised inter alia, by a lack of self-awareness on

the part of the person subjected to the process. Prof

Diener explained, however, that while his American students

were able to respond to his questions concerning their

self-awareness, those of the appellants questioned by him

in this connection had found the concept difficult to

grasp. Prof Diener's opinion that at the time of their

participation in the assault upon the deceased some of the

appellants had a diminished capacity for thought and

reflection was based in part on their evidence that their

memory of the assault upon the deceased was poor and

fragmentary; and it was further -

".....evidenced in their reports that their

thinking was different and unusual"

at the time of the assault.

62

It need hardly be said that the cogency of the

opinions expressed by Prof Diener in regard to the ability

of some of the appellants at the time of the assault to

foresee the consequences both of their own actions and

those of the general mob attack upon the deceased, depends

in large measure upon an appraisal of the truthfulness or

otherwise of the evidence given by the appellants at the

trial; and the reliability or otherwise of the replies

vouchsafed to Prof Diener by the appellants interviewed in

response to the somewhat abstract interrogatioh attempted

by him in circumstances less than ideal.

Prof Diener expounded the concept of

deindividuation with reference to interesting laboratory

tests conducted by him and by other researchers in this

field. Such tests involved the observation of groups of

persons in simulated crowd situations. The laboratory

technigues employed and the nature and significance of the

63

experimental data thus obtained, were explored at very

considerable length in Prof Diener's evidence. These

matters are also dealt with in some detail in the judgment

of the court below. Having given careful consideration to

this part of the evidence in the case it suffices to say

that I share the view of the trial court that none of the

tests described by Prof Diener seemed to bear direct

relevance to the circumstances wherein the assault upon the

deceased took place.

Having regard to the particular facts of the

present case I agree also with the following conclusion of

the trial court:-

" ons meen nie dat prof Diener se getuienis 'n

behoorlik wetenskaplike gefundeerde basis

daarstel waaruit ons kan aflei dat sommige van

die beskuldigdes verminderd toerekeningsvatbaar

was nie."

In weighing the cogency of Prof Diener's opinions

in relation to the appellants I am further constrained to

64

agree with the following observations made by the trial

judge in his judgment:-

"..wat die beskuldigdes in hierdie saak

aanbetref, behels dit, anders as in die geval van

die toetse waarop prof Diener hom beroep en waar

die ondervraging direk ná die voorval geskied

het, h ondervraging oor 'n geestesgesteldheid wat

bykans twee jare vantevore geheers het. Die

beskuldigdes is in detail gekruisverhoor oor wat

hulle geestestoestand was, en ons is tevrede dat

baie min waarde geheg kan word aan hulle

herinnering van wat hulle geestestoestand was.

Uit die aard van die saak moet elkeen van die

beskuldigdes se geheue daaromtrent geweldig

vervaag het. Prof Diener gee dit ook geredelik

toe. Dit moet gevolglik die betroubaarheid van

sy afleidings verswak.

Verder is dit net logies dat wanneer h

beskuldigde gekonfronteer word met sy

weersinwekkende optrede soos uitgebeeld op die

videofilm, dat hy homself sover as moontlik

daarvan sal distansieer. Prof Diener het dit

ook toegegee. In soverre as wat hy dan na

aanleiding van antwoorde deur die beskuldigdes

aan hom tot die effek dat hulle nie kan glo dat

hulle so opgetree het nie, die afleiding maak dat

hulle so h persoonlikheidsverlies ervaar het dat

hulle vermoë om hulle handelinge te reguleer

volgens wat hulle besef reg en verkeerd is,

eweneens aangetas was, moet daardie afleiding

noodwendig ook baie minder gewig dra as wat prof

65

Diener daaraan gaan heg het.

It seems to me further, with respect, that Prof

Diener's evidence may be open to criticism for the reason

that it discounts what seems to be an obvious and

fundamental fact. In the present case one does not, I

consider, have to look very far for the motive which

impelled those appellants whose active participation in the

assault is common cause, to join in the attack upon the

deceased. The motive is patent. It was to inflict pain

and punishment upon what in the community to which the

appellants belonged was an object of detestation: an

informer. To ignore this cardinal feature is to escape

into the unreality of Cloudland. Hówever, as I understand

the evidence of Prof Diener, he did not consider that

accused nos 1, 2, 5 and 10 harboured any such conscious

motive. Taking a broad look at the case as a whole, that

view of the state of mind of accused nos 1 , 2, 5 and 10

66

appears to me to be fanciful and unsound. It is,

moreover, directly in conflict with the testimony of each

of these four appellants that she or.he was angry with the

deceased because she was a police informer.

Although accused nos 3 and 8 both denied that

they had assaulted the deceased it is clear on their own

evidence that each of them made physical contact with the

body of the deceased when she was alive. Accused nos 1,

2, 5, 9, 10 and 11 each testif ied that when he or she

assaulted the deceased she was still alive. Accused no 4,

however, claimed that when he for the first time dropped

the rock on the deceased ("the rock-dropping incident") the

deceased was already dead. The rock-dropping incident was

witnessed, inter alios, by two State witnesses respectively

named Cyprian Jele and Stephen Tshabalala. Largely on the

strength of their testimony, which in argument before us

was severely criticised by counsel for the appellants, the

67

trial court found as a fact that at the time of the rock-

dropping incident the deceased was still alive.

The trial court rejected the denials of accused

nos 3 and 8; and it disbelieved the evidence of the

remaining appellants regarding their state of mind when

they participated in the assault upon the deceased.

The corner-stone of the trial court's judgment

convicting the appellants of murder is to be found in two

consecutive paragraphs of the learned judge's judgment

(which for the sake of convenience I shall respectively

letter as (A) and (B)), which read as follows:-

"(A) Die videoband toon duidelik aan dat dit

'n woedende skare was wat op die

oorledene toegesak het. Stokke en

ander voorwerpe kan gesien word.

In ons oordeel kon geen mens geglo het

dat daardie aanval sou eindig voordat

die oorledene dood was nie. Op die

minste genome het elke persoon daar

besef dat daar h uitstekende kans was

dat die oorledene sou sterf.

68

(B) Elkeen van die nege beskuldigdes het

gemeensaak gemaak met die moordbende en

het deur hulle optrede bygedra tot die

verhoging in felheid van die aanval op

die oorledene.

Ons verwerp derhalwe al die

beskuldigdes se getuienis dat hulle

bloot die oorledene wou laat pyn voel

het en dat hulle nie met die groep

aanranders gemeensaak gemaak het nie."

The conclusion stated in para (A) guoted above

may be dealt with very shortly. In my opinion it is

supported by the overwhelming probabilities, and it is, I

consider, quite unassailable. The video film demonstrates

that the mood of the crowd was ferocious, ruthless and

savage. It was bent upon the destruction of the deceased.

What was going forward at the scene of the assault would

have rendered it obvious to any ten year-old child of

ordinary intelligence that the fate of the deceased was

sealed: that she had not the faintest hope of surviving

the merciless attack upon her; and that she was doomed to

69

die within a matter of minutes.

I turn to the conclusion stated in para (B). As

will be made clear later in this judgment, the evidence

does not satisfy me that in fact each and every one of the

nine appellants acceded to a common purpose to murder the

deceased. However, even accepting the correctness of the

f indings of fact set forth in para (B), and accepting

further that the deceased was still alive at the time of

the rock-dropping incident, the first question which arises

in this case is whether, in the light of the medical

evidence, it was legally competent for the trial court to

find any of the appellants guilty of murder or whether, at

worst for the appellants, they (or some of them) should

have been found guilty merely of attempted murder. This

is a vexed question which requires careful examination of

legal precedent and authority.

The trial court found each of the appellants

70

guilty of murder by invoking the doctrine of common

purpose. A "common purpose" is a purpose shared by two or

more persons who act in concert towards the accomplishment

of a common aim. In the past convictions for murder in

group violence cases have led to much debate by learned

writers on two related but distinct and separate issues.

The one ("the causality issue") raises the question whether

a participator in a common purpose to kill who accedes to

the common purpose before the deceased has been fatally

injured may be found guilty of murder in the absence of

proof that his own conduct caused or contributed causally

to the death of the deceased. The other ("the joining-in

issue") raises the question whether what may conveniently

be referred to as "a late-comer" may be found guilty of

murder. A late-comer is one who becomes a participator in

a common purpose for the first time at a stage when the

deceased is still alive but after he has already been

fatally injured. A useful catalogue of the legal litera-

71

ture on both issues is to be found in Rabie,

A Bibliography of SA Criminal Law at 83-86.

Uncertainty in regard to the causality issue has

been dispelled by the decision of this court in S v Safatsa

and Others 1988(1) SA 868(A). That too was a case

involving the death of the deceased through mob violence.

Before the trial court eight persons were charged on

various counts including murder. Six of the eight were

found guilty of murder. The trial court found that each

of the six had had the intention to kill the deceased. It

further found that these six accused had actively

associated themselves with the conduct of the mob, which

was directed at the killing of the deceased. Those two

findings were upheld in an unsuccessful appeal to this

court by the six against their convictions for murder.

The unanimous judgment of this court was delivered by

BOTHA, JA. Having examined the evidence against each of

72

the six convicted of murder the learned judge of appeal

remarked (at 893 G-H):-

"In the case of each of these accused, the

conduct described above plainly proclaimed an

active association with the purpose which the mob

sought to and did achieve, viz the killing of the

deceased. And from the conduct of each of these

accused, assessed in the light of the surrounding

circumstances, the inference is inescapable that

the mens rea reguisite for murder was present."

On behalf of the six appellants in the Safatsa

case it was argued that they had been wrongly convicted

because the State had failed to prove that their conduct

caused or contributed causally to the death of the

deceased. For purposes of his judgment BOTHA, JA assumed

(at 894 F-G) that it had not been proved in the case of any

one of the six that their conduct had contributed causally

to the death of the deceased. An examination of earlier

decisions of this court (which should be read in associa-

tion with the illuminating analysis undertaken earlier by

BOTHA, AJA in S v Khoza 1982(3) SA 1019(A) of both the

73

majority judgment in R v Mgxwiti 1954(1) SA 370 (A) and the

unanimous judgment in R v Dladla and Others 1962(1) SA

307(A)) led BOTHA, JA to the conclusion that in cases of

murder in which a common purpose to kill has been proved,

the act of one participator is causing the death of the

deceased is imputed, as a matter of law, to the other

participators; and that the latter may be convicted of

murder in the absence of proof of any causal connection

between their conduct and the death of the deceased. At

900H the learned judge of appeal remarked that:-

"....it would constitute a drastic departure from

a firmly established practice to hold now that a

party to a common purpose cannot be convicted of

murder unless a causal connection is proved

between his conduct and the death of the

deceased. I can see no good reason f or

warranting such a departure."

Following shortly in the wake of the Safatsa case came the

decision of this court in S v Mgedezi and Others 1989(1) SA

687(A). In a case involving mob violence the trial court

74

had invoked the doctrine of common purpose in convicting

the accused of murder. The accused appealed against their

convictions and sentences. The judgment of this court

sheds further light upon certain facets of common purpose

and it indicates guidelines for the practical application

of the doctrine. The facts were these. Room 12 at a

mine compound was shared by six team leaders who were

regarded by their fellow-workers as informers. In a night

of turbulence at the compound an attack was launched upon

room 12 in the course of which four of the team leaders

were killed. While the accused who were members of the

attacking party were adequately identified, no State

witness saw any of the accused inflict upon the deceased an

injury which caused or contributed causally to their death.

Again the unanimous judgment of this court was delivered by

BOTHA, JA. For purposes of the present case reference may

usefully be made to two brief excerpts from the judgment in

75

the Mgedezi case. In the first quotation an important

principle is stressed. The point is made that a person

who by mere chance happens to entertain, quite

independently of the actual perpetrator, the same aim which

impels the latter to commit the criminal deed, cannot for

the purposes of the criminal law be regarded as sharing a

common purpose with the actual perpetrator. The net of

common purpose will enmesh only an accused who consciously

recognises that his mind and that of the actual perpetrator

are directed towards the achievement of a common goal. In

this connection BOTHA, JA remarked at 712 B-C:-

"Inherent in the concept of imputing to an

accused the act of another on the basis of common

purpose is the indispensable notion of an acting

in concert. From the point of view of the

accused, the common purpose must be one that he

shares consciously with the other person. A

'common' purpose which is merely coincidentally

and independently the same in the case of the

perpetrator of the deed and the accused is not

sufficient to render the latter liable for the

act of the former."

76

The practical implications of the principle enunciated in

the passage quoted above are indicated earlier in the

judgment in the Mgedezi case. At 705H-706B BOTHA, JA

stated:-

"In the absence of proof of a prior agreement,

accused No 6, who was not shown to have

contributed causally to the killing or wounding

of the occupants of rpom 12, can be held liable

for those events, on the basis of the decision in

S v Safatsa and Others only if certain

prerequisites are satisfied. In the first

place, he must have been present at the scene

where the violence was being committed.

Secondly, he must have been aware of the assault

on the inmates of room 12. Thirdly, he must

have intended to make common cause with those who

were actually perpetrating the assault.

Fourthly, he must have manifested his sharing of

a common purpose with the perpetrators of the

assault by himself performing some act of

association with the conduct of others.

Fifthly, he must have had the requisite mens rea;

so, in respect of the killing of the deceased, he

must have intended them to be killed, or he must

have foreseen the possibility of their being

killed and performed his own act of association

with recklessness as to whether or not death was

to ensue. (As to the first four requirements,

see Whiting 1986 S A W 38 at 39.)"

I return to the Safatsa case. It involved only the

77

causality issue. Referring to the case of joining-in by a

late-comer 80THA, JA (at 895E) was at pains to say:-

"That type of situation can be left out of

consideration, for it does not arise on the facts

of this case : here, each of the accused (i e the

six convicted of murder) became an active

participant in the pursuance of the common

purpose prior to the fatal wounds being inflicted

on the deceased."

In the present appeal, on the other hand, the

joining-in issue is squarely raised by the facts. If the

evidence establishes the existence of a common purpose to

kill the deceased, and the accession of any one or more of

the appellants to such common purpose, their criminal

liability has to be determined in the light of the

reasonable possibility that their accession to the common

purpose took place after the deceased had already been

fatally injured; and that thereafter nothing done by any

of the appellants expedited the death of the deceased.

Whether in such a situation a late-comer may be

78

convicted of murder is a question upon which it has so far

not been necessary for this court to essay a categorical

answer. But although the matter may be res integra in

this court, over many decades various and conflicting

opinions upon it have been voiced in earlier decisions of

this and other courts.

In this court the matter was first mooted forty

years ago in R v Mtembu 1950(1) SA 670(A). In that case S

stabbed the deceased in the chest with a knife whereupon

the appellant ran up and struck the deceased a blow on the

head with a stick. By a majority of two to one

(SCHREINER, JA and MURRAY, AJA, GREENBERG JA dissenting)

the appeal from a conviction for murder was dismissed on

the ground that the fatal blow had been dealt by S in

furtherance of a prior common purpose between him and the

appellant to attack any person they might chance to meet;

and, accordingly, that the appellant and S were equally

79

guilty of murder. In his dissenting judgment GREENBERG was

unable to agree that such prior common purpose had been

sufficiently proved. In separate judgments delivered by

SCHREINER, JA and MURRAY, AJA one of the matters discussed

by each was whether, if no common purpose between him and S

had been proved, the appellant would nevertheless have been

guilty of murder since the fatal injury had been inflicted

by S before the appellant intervened, and since the

latter's blow neither caused nor hastened the victim's

death. MURRAY, AJA considered that the question whether

the appellant by striking the blow with the stick

"assisted" S to murder the deceased should be answered in

the negative. At 686 MURRAY, AJA remarked:-

"It may, of course be said that the crime of

murder was not completed in the present case at

the time the appellant struck his blow, for the

deceased was still alive. But the essential act

had been completed, the wrongful, unlawful and

intentional stabbing of the deceased. In

the stabbing itself the appellant had no part,

nor could he have had mens rea in relation to the

80

infliction of the fatal wound before his

intervention."

In the course of his judgment SCHREINER, JA said (at 677):

"I find it unnecessary to express any

opinion as to whether the guilt of the appellant

might not also have been properly rested úpon his

having joined in what he could see was a

murderous assault, which, although the fatal

wound had already been administered when he

intervened, was still being maintained by the

second accused against the first accused (sic) to

the extent that he was still holding him."

(The reference to the "first accused" is a

typographical error; it should be "first

deceased").

SCHREINER, JA preferred (at 679) to leave his question open

for future consideration. However, earlier in his

judgment the learned judge of appeal had expressed doubt

(at 678-679):-

"....whether analysis based on causality may not

in these cases be pushed beyond utility, and

whether perhaps, liability should not depend upon

the accused persons's having taken part, even

without agreement and merely by way of

assistance, in an assault which is known by him

81

to be murderous and which results in the death of

the victim irrespective of whether the fatal

wound was causally connected with the conduct of

the assister or not."

The concept thus proffered by SCHREINER, JA in Mtembu's

case was developed and applied by him in the later case of

R v Mgxwiti (supra). The deceased, who was in her motor

car, was the prey of a violent mob. She was assaulted,

her car was set alight, and she was incinerated. Although

the appellant was party to a common purpose to kill the

deceased, he was not a participant in the initial assault.

He joined in later by stabbing at the deceased. In the

course of his judgment GREENBERG, JA said (at 374 D-E):-

"It was contended on behalf of the appellant that

he cannot be held to be guilty of the murder, on

the doctrine of common purpose, unless he

associated himself with that purpose at a time

when the deceased had not yet received a fatal

injury. I did not understand that this

contention was disputed on behalf of the Crown

and I shall deal with the question on this

basis."

However, GREENBERG, JA found that the appellant had

82

actively associated himself with the attackers and made

common cause with them before the deceased had been fatally

injured; and that he was therefore guilty of murder.

DE BEER, AJA concurred in the judgment of GREENBERG, JA.

SCHREINER, JA took the view that the evidence did

not prove beyond reasonable doubt (a) that the deceased had

not received her mortal injuries before the appellant

joined the attack upon her, but it did prove (b) that at

that time the deceased was still alive. SCHREINER, JA

nevertheless concurred in the dismissal of the appeal

because on his understanding of the legal position proof of

(b) sufficed to make the appellant guilty of murder. The

learned judge of appeal proceeded to expound what may be

conveniently described as "the Schreiner rule". At

382D - 383C SCHREINER, JA said the following:-

"No doubt the basic approach to these questions

which has been accepted by this Court is that of

mandate (cf. Rex v Mkize, 1946 A D 197 at pp 205

and 206), and in general there is no place for

83

liability by ratification in the criminal law.

(Rex v Mlooi & Others, 1925 A D 131). But where

an accused person has joined a murderous assault

upon one who is then alive but who dies as a

result of the assault, it seems to me that no

good reason exists why the accused should be

guilty of murder if at the time when he joined in

the assault the victim, though perhaps grievously

hurt, was not yet mortally injured, but should

not be guilty if the injuries already received at

that time can properly be described as mortal or

fatal. The alternative view is to hold that so

long as the accused joined the assault while the

deceased was alive he is responsible with the

others for the death.

The practical advantages of the latter view are

obvious, for, even where the body has not been

burned or similarly disposed of, it will often in

cases of a combined assault be impossible to say

with any approach to certainty which of several

successive injuries was fatal and what the

prospects of survival would have been if one or

more of the other injuries had not been

inflicted. And whether a particular injury is

or is not mortal or fatal must, especially in the

light of modern surgery and medicine, be a

question on which expert opinion will differ; it

is, therefore, an unsatisfactory foundation for

criminal responsibility, especially when such

serious consequences follow upon the answer.

Looked at from the point of view of the accused

who has joined in a murderous assault there seems

to be no reason for making his guilt depend on

84

what he could scarcely know about - whether any

injuries already received by the victim were

mortal or something less than that - instead of

basing it on whether the victim was actually

alive or not, a matter on which the accused might

well be able to form an opinion.

In regard to reconciliation with legal principle

it seems to me that a generalisation that whoever

joins in the attack before death has actually

ensued must be deemed in law to have contributed

to the result would be unsatisfactory, for it

might manifestly depart from the truth. I can

see no objection, however, to according, in this

narrow field, recognition to the principle of

ratification - that whoever joins in a murderous

assault upon a person must be taken to have

ratified the infliction of any injuries which

have already been inflicted, whether or not in

the result these turn out to be fatal either

individually or taken together.

However that may be, I consider the law to be

that where an accused person has joined in an

assault which he knows to be aimed at the death

of someone else, his responsibility for the

ensuing death will depend on whether the victim

was alive at the time when the accused joined in

the assault and not on whether the victim had or

had not at that stage received mortal injuries."

In R v Chenjere 1960(1) SA 473 (FC) the facts

were shortly as follows. Without a prior common purpose

85

the appellant had joined with the mother of the deceased in

a deliberate attempt to kill the latter when the deceased

was already mortally injured but still alive. The

appellant's appeal against his conviction for murder was

dismissed by three judges in the Federal Supreme Court.

TREDGOLD, CJ considered the Schreiner rule to be right

"both in principle and on a practical approach" (at 474H)

and he adopted it. The learned Chief Justice approached

the problem thus (at 477A):-

"What the Courts have to discover is whether a

man has made himself an accessory to the crime of

murder. If he accedes to anything it is to the

crime as a whole, not a constituent element,

however important that element may be."

In the course of his judgment BRIGGS, FJ stressed (at

480D-E) that the crime of murder is complete only at the

moment of death, and said:-

"It seems logically to follow that it is possible

to associate oneself with a project to murder at

any time before the death occurs, for until that

time the offence is still in course of

86

commission."

Later in his judgment (at 481 F-G) BRIGGS, FJ remarked:-

"I am, with great respect, not convinced by the

argument that to strike a man who to one's

knowledge has received a mortal wound, with the

intention of assisting in another's project that

he shall die, is analogous to striking a corpse.

The fact that he is still alive seems to me to

make a fundamental difference."

Next it is necessary to consider the true

significance and effect of the decision of this court in

the oft-discussed case of S v Thomo and Others 1969(1) SA

385(A), a judgment of WESSELS, JA in which STEYN, CJ and

POTGIETER, JA concurred. The essential facts were these.

Using a panga the second appellant had launched a violent

attack upon the deceased in the course of which he

sustained mortal head injuries. After the second

appellant's attack upon the deceased had ended, and while

the deceased was still alive, the third appellant (accused

no 4 at the trial) intervened. While the deceased was

87

being held by a bystander the third appellant, with the

intent to kill, stabbed the deceased several times in the

back. It could not be found, however, that these stab

wounds were causally related to the deceased's death. The

trial court convicted the third appellant of murder. On

appeal one of the questions which fell to be decided was

whether the third appellant had been guilty of murder or

the lesser crime of attempted murder.

The first inquiry upon which WESSELS, JA embarked

was to consider whether a verdict of murder was justifiable

on the basis of the doctrine of.common purpose. In this

connection the learned judge of appeal said the following

(at 399 A-C):-

" I am of the opinion that the evidence does

not exclude the reasonable possibility that, when

fourth accused intervened he was engaged upon an

independent venture intending to kill the

deceased by stabbing him. His mind may in fact

not have been directed at all towards assisting

second accused in the latter's conduct aimed at

achieving the resuit which both of them had in

88

mind In every case the f ocus is on the

conduct of the socius, its causal relationship

with the results flowing from the principal

actor's conduct and the former's state of mind

when he engaged in the conduct complained of.

It follows that fourth accused's guilt as a

socius was not established beyond any reasonable

doubt on the basis of the so-called common

purpose doctrine."

Immediately after the passage quoted above WESSELS, JA

proceeded to state (at 399 C-D):-

"The final question to be answered is whether in

law the verdict of guilty of murder can be

justified upon the basis indicated in the

minority judgment of SCHREINER, JA in Mgxwiti's

case "

Having discussed the reasoning underlying the Schreiner

rule WESSELS, JA roundly rejected it (at 399H - 400A) by

remarking:-

"The rule is contrary to accepted principle and

authority, which have consistently required that

on a charge of murder it must be established

that, intending the death of his victim, the

accused, irrespective of the fact whether he is

charged as principal or socius, was guilty of

unlawful conduct which caused or causally

contributed to the death of the deceased."

89

In what follows it will be convenient to refer to the last-

quoted passage as "the Thomo dictum." It seems to me,

with great respect, that in assessing the correctness or

otherwise of the Schreiner rule the Thomo dictum is of

little assistance. I take this view for a number. of

cogent reasons which have already been formulated by

others. First, for the reasons advanced by BOTHA, AJA in

S v Khoza (supra) at 1056E - 1057A (augmented by the

further and compelling considerations later set forth by

BOTHA, JA in the Safatsa case (supra) at 896E - 897B), I

respectfully agree with the conclusion of the learned judge

of appeal that the Thomo dictum, in so far as it deals

with the position of a socius, is obiter. Second, in so

far as the doctrine of common purpose is concerned, I

respectfully concur in the view expressed by BOTHA, AJA in

the Khoza case (at 1057 A-B) that to postulate a

requirement that the participator's conduct must be

90

causally related to the deceased's death runs directly

counter to the majority judgment in the very Mgxwiti case

itself. (Indeed, such a postulate is even more plainly at

variance with the unanimous judgment of this court in

R v Dladla and Others (supra)). Moreover, as is correctly

pointed out by Professor Whiting, 1986 S A W 38 at 45, in

regard to the Schreiner rule the Thomo dictum rests upon

two misconceptions:-

"As to its basis, the court appears not to have

appreciated that the (Schreiner) rule was

intended not as something independent of the

doctrine of common purpose, but as an extension

of the doctrine to cover certain cases where the

common purpose arose only after the act to be

attributed had already been committed. As to

its scope, the court appears not to have realized

that the rule was not intended to cover cases

where the intervention occurred only after the

original assault had already ceased. This

latter point is of particular significance,

inasmuch as, on the facts before the court, third

appellant would, even on the view taken by

SCHREINER, JA, still only have been guilty of

attempted murder, since his intervention occurred

only after the second appellant's assault had

already ceased. It was thus not necessary for

91

the court to have passed upon the correctness of

the rule enunciated by SCHREINER, JA."

Some thirteen years after the Thomo case the

necessity for considering the correctness or otherwise of

the Schreiner rule arose in two minority judgments in the

Khoza case (supra). The facts were the following. One MH

(accused no 2 at the trial) and the appellant had been

convicted of murder. The appellant appealed against his

conviction. The evidence revealed that accused no 2 had

attacked and mortally wounded the deceased by stabbing him.

Thereupon, and while the deceased was still alive, the

appellant joined in by striking the deceased two blows with

a cane. The deceased tried to run away but was pursued by

accused no 2 who did something else to him. The deceased

died shortly afterwards. There was no evidence that

before accused no 2 launched his attack upon the deceased

there had existed between the appellant and accused no 2

any common purpose to kill the deceased. There was a

92

distinct possibility that the fatal wound or wounds had

been inflicted by accused no 2 before the appellant joined

in the attack, and it was improbable that the blows

inflicted on the deceased by the appellant with a cane had

any causal connection with the deceased's death. The

crucial issue in the appeal was whether or not the

appellant had joined in with the intention of killing the

deceased. A majority of three judges decided that such an

intention on the part of the appellant had not been

established, and that he had not been shown to be guilty of

anything more than the crime of common assault. The

remaining members of the court (CORBETT, JA and BOTHA, AJA)

took a different view of the facts. They considered that

it must have been obvious to the appellant that the attack

of accused no 2 on the deceased was a very serious one

which might well result in the death of the deceased; and

that, with this knowledge, the appellant joined in the

93

attack with the intention of associating himself therewith

and furthering it. This finding by the minority

pertinently raised for them a consideration of the joining

in issue : was the appellant guilty of murder where his

association with the murderous attack had begun only after

all the injuries contributing to the deceased's death had

been inflicted?

Adverting to this court's decision in S v

Williams en h Ander 1980(1) SA 60(A) CORBETT, JA considered

whether the appellant could be held criminally responsible

for the murder of the deceased as an accomplice; and in

this connection he discussed the nature of the requisite

causal connection between the assistance provided by an

accomplice and the commission of the crime by the actual

perpetrator or co-perpetrators thereof. Without finding

it necessary to come to any final decision as to what type

of causation had been envisaged in the Williams case,

94

CORBETT, JA was driven to the conclusion that the

appellant could not be held guilty as an accomplice to

accused no 2 in regard to the murder of the deceased. The

learned judge of appeal expressed the view (at 1035 C-D):-

"....that for an accomplice to be found guilty of

murder his assistance must be given before the

perpetrator has completed the act which alone

causes the death of the deceased. Put

negatively, assistance furnished after the

perpetrator has completed the act which alone

causes the death of the deceased cannot render

the assister liable as an accomplice to murder,

whatever else the criminal consequences of such

conduct may be."

Nor was CORBETT, JA swayed by the reasoning adopted in the

Chenjere case (supra) that the act of murder is not

complete until the moment of the victim's death. In this

connection the learned judge of appeal' remarked (at

1035H - 1036A):-

"It seems to me that in a case of murder the

liability of an accomplice is essentially based

upon the assistance given by him to the

perpetrator with reference to the act or acts of

the perpetrator which cause the death of the

95

deceased. Once the act or acts which ultimately

cause the death of the deceased have been finally

committed by the perpetrator, then, even though

the victim may still be alive - and in that sense

the crime is incomplete - intervention thereafter

by another, with the intention of assisting the

perpetrator to achieve his purpose but not having

any causal effect on the death of the deceased,

cannot in law or in fact be regarded as assisting

the perpetrator. At the stage of intervention

the perpetrator has done all that is necessary to

achieve his object and the realisation of that

object, viz the death of the deceased, is merely

a matter of time."

In relation to the doctrine of common purpose and

the criminal liability of a late-comer CORBETT, JA stated

(at 1036 F-G):-

"Whatever role common purpose may serve in the

law relating to participation in crime .... it is

clear that in order to impute the act of a

perpetrator to another person on the ground of

common purpose it is, in general, necessary that

the latter should have acceded to the common

purpose before the act in question was committed:

see R v Mtembu 1950(1) SA 670 (A) at 673 - 4; cf

R v Von Elling (supra) at 240 - 1)."

Dealing with the Thomo dictum CORBETT, JA remarked that it

was not clear to him that it was intended to be obiter

96

(1038 B - C ) : -

"....but whatever the postion may be I would

respectfully associate myself with the Court's

rejection of this (the Schreiner) rule."

And at 1038 D - F:-

"I agree that the concept that an accused person

who joins in an affray after the fatal blow has

been struck, and without any prior arrangement or

common purpose, can render himself criminally

liable for the consequences of thát fatal blow,

i e the death of the victim, provided that the

victim is still alive when he joins in, is not in

accordance with our law. My reasons for coming

to this conclusion should appear sufficiently

from my general consideration of appellant's

possible liabilityin this case on the ground of

participation as a co-perpetrator, or

participation as an accomplice, or on the ground

of common purpose. In general it may be said

that in the type of case postulated above, the

necessary causal connection for legal

responsibility is lacking."

Concluding that the appellant had therefore been wrongly

convicted of murder, CORBETT, JA proceeded to review the

evidence, in the light of which he held that the

appellant's intervention had been accompanied by a mental

97

intent amounting to dolus eventualis; and that the verdict

which the trial court should have returned was that the

appellant was guilty of attempted murder.

I turn to the other minority judgment in the

Khoza case. BOTHA, AJA took the view that the appellant

had been rightly convicted of murder. At 1049 F-H

BOTHA, AJA stated the problem which arose on his view of

the facts and the resolution of it which he favoured:-

"The problem posed by the facts relates to the

fequirement of an actus reus on the part of the

appellant, and it arises because of the lack of

proof of a causal connection between the

appellant's assault and the deceased's death.

It is the absence of the element of causation

that leads my Brother CORBETT to the conclusion

that the appellant is not guilty of murder, but

guilty of attempted murder.

On the other hand, on the approach adopted by

SCHREINER, JA in R v Mgxwiti...at 381G - 383B,

the appellant is guilty of murder, despite the

lack of proof of causation. In my view, with

respect, the result arrived at on the basis of

the approach of SCHREINER, JA is to be preferred

to the conclusion reached by my Brother CORBETT.

SCHREINER, JA's approach is a pragmatic

98

one which I consider to be soundly based on

considerations of policy and practical exigency

in the administration of criminal justice. (I

leave aside for the moment the theory of

ratification; I shall say something about that

later.)"

BOTHA, AJA proceeded to quote with approval the passage

from the judgment of SCHREINER, JA (at 382F in the Mgxwiti

case, already quoted in this judgment) setting forth the

practical advantages of the Schreiner rule, as well as

passages from the judgments in the Chenjere case of

TREDGOLD, CJ (at 476C - 477H) and BRIGGS, FJ (at 480C -

481H).

BOTHA, AJA stated (at 1051C) that if it were open

to him to do so, he would follow and apply the Schreiner

rule; and at 1051C - 1052G the learned judge considered

whether he was precluded from doing so either by principle

or authority. He pointed out that in cases involving more

than a single accused in which liability is founded upon a

common purpose to kill, accused persons had been held

99

criminally responsible for murder even though their acts

were not proved to have contributed causally to the death

of the deceased. As examples he cited the majority

judgment in Mgxwiti's case and (at 1052 A -B) the unanimous

judgment of this court in the Dladla case (supra):

"....in which a conviction of murder was upheld

where the accused had actively associated himself

with a murderous mob attack on the deceased but

where there was no evidence that he himself had

actually assaulted the deceased."

The conclusion to which BOTHA, AJA was impelled (at 1052

E-G) was that in cases of the kind under discussion:-

"....the actus reus of the accused cm which his

criminal responsibility for the murder is

founded, consists not in any act which is

causally linked with the death of the deceased,

but solely in an act by which he associates

himself with the common purpose to kill (see

Burchell and Hunt, South African Criminal Law and

Procedure vol 1 at 364). To couch the same idea

in a different form : criminal responsibility for

murder (where the requisite mens rea is present)

can be founded upon an actus reus of another, or

others, which latter conduct consists in the

unlawful causing of the death of the deceased."

100

This last conclusion represents, so I consider, the logical

and legal foundation of the unanimous decision of this

Court in the subsequent Safatsa case.

The question which at once arises, however,

(an answer to which will be attempted later in this

judgment), is whether the conclusion reached by BOTHA, AJA

at 1052 E-G in the Khoza case (and which has just been

quoted) likewise provides a sound and satisfactory basis

for the following proposition expounded by BOTHA, AJA

immediately thereafter (at 1052H - 1053C):-

"On this view of the law it follows, in my

judgment, that there is no necessity to

distinguish between participation in a common

purpose to kill which commences before the

deceased has received a fatal wound and such

participation which commences after the deceased

has been mortally wounded, but while he is still

alive; nor, indeed, is any useful purpose to be

served by such a distinction. The distinction

is deprived of any real significance, in my

opinion, as soon as it is recognised that a

causal connection between the acts of the accused

and the death of the deceased is not an

101

indispensable requirement for a conviction of

murder, and that a conviction of murder is

competent cm the basis of an actus reus

(accompanied by the requisite mens rea) which

takes the form of participation in, and active

association with, the conduct of another person,

or other persons, which causes the death of the

deceased. Upon this footing I venture to

suggest, with respect, that it is wholly

artificial to exclude criminal responsibility for

murder solely because the deceased was already

fatally wounded when the accused joined in the

assault, for I can perceive no persuasive force

in postulating, in support of such a conclusion,

that the actus reus of the main perpetrator (s)

had been completed and that it was only a matter

of time before the death of the deceased ensued.

In fact and in law the crime of murder is not

complete until the victim dies; up to that

moment there is no reason, I consider, why an

active association with the object of the main

perpetrator(s) should not attract criminal

responsibility for the result which follows

thereafter. In my view, therefore, whether or

not the deceased had been fatally injured before

the commencement of the accused's participation

is irrelevant, both in logic and in principle."

As to an acceptable jurisprudential basis for the Schreiner

rule BOTHA, AJA observed (at 1053H):-

102

"To hold the appellant guilty of murder I do not

find it necessary to rely on the theory of

ratification, mentioned by SCHREINER, JA in

Mgxwiti's case supra. In my view, as will have

appeared, I hope, from what has been said above,

it is sufficient to found the appellant's

liability simply on his active association with

accused No 2's murderous assault on the

deceased."

In the course of his judgment in the Khoza case

BOTHA, AJA also dealt with the facts as found by him in the

light of this court's decision in S v Williams en h Ander

(supra). The conclusion reached in the Williams case had

been the subject of some critical scrutiny (see eg Whiting

1980 SALJ 199; Snyman 1980 TSAR 188; Labuschagne 1980 De

Jure 164). In exploring the reasoning in the Williams

case BOTHA, AJA made it clear (at 1054 C-D):-

" that I do not accept that it was intended in

Williams' case to supplant, qualify or detract

from the substance of the practice of the Courts

in relation to common purpose in previous cases

decided over a period of many years."

I would, with respect, share that opinion. The present

103

appeal does not, I consider, require examination of the

decision in the Williams case. For the further reasons

advanced by BOTHA, JA in the Safatsa case (at 898 C-I) I

respectfully endorse his statement in the latter case that

in applying the law relating to cases of common purpose the

judgment in the Williams case may safely be left out of

consideration.

I return to the Khoza case. BOTHA, AJA

concluded (at 1055F) that it would be in conformity with

the principles of our law to find the appellant guilty of

murder. The learned judge proceeded to consider (at 1055F

- 1057C) whether there was any binding authority which

precluded such a verdict. Having reviewed cases such as R

v Mtembu (supra), R v Von Elling 1945 AD 234, and S v Thomo

and Others (supra) BOTHA, AJA ultimately decided that no

binding authority prevented him from giving effect to his

views. His conclusion was therefore that the appeal

104

should be dismissed.

The view of the legal position adopted by

BOTHA, AJA in Khoza's case was espoused by THIRION, J in

S v Dlamini and Others 1984(3) SA 360(N). In the course

of a thoughtful judgment the learned judge cited a number

of examples designed to illustrate the difficulties which

in practice might be encountered upon the application of

the opposite view that the late-comer is guilty of murder

only if his assault causally contributes to the death of

the victim. THIRION, J was attracted by the pragmatism of

the Schreiner rule, stating (at 367 C-D):-

"It is socially important that wrongdoers who,

with intent to kill, join in a murderous assault

on a living person should be held liable for his

death when it results from that murderous

assault. An accomplice in a murderous assault

should not escape conviction for murder simply

because quite fortuitously the injury which

causes the death has been inflicted before his

participation commences."

It cannot be gainsaid, I think, that upon an

105

utilitarian approach to the problem the Schreiner rule has

much to commend itself. As far as legal policy is

concerned, however, a number of considerations should not

be overlooked. The first is this. Although the

practical advantages to which SCHREINER, JA alluded in

Mgxwiti's case may be obvious, it is no less clear that

they are entirely one-sided: . they favour the prosecution

and burden the accused. Second, while seen from the angle

of the late-comer it may be fortuitous whether his joining

in makes him guilty of murder or merely of attempted

murder, the same may be said of many situations in which an

accused is found guilty of an attempted crime and not the

completed crime. As pointed out by Whiting in 1986 SALJ

38 in footnote 58 at p 50, this is the position more

particularly in cases of so-called "completed attempts"

where the accused has done all that he set out to do, but

fails in his purpose. Third, when seen from the point of

106

view of the desirability that wrongdoers who join in

murderous assaults should be adequately punished, it cannot

be said that a failure to apply the Schreiner rule will

necessarily frustrate the administration of criminal

justice. As pointed out by WESSELS, JA in Thomo's case

supra (at 400A):-

"It must be borne in mind that an accused will

not escape the consequences of his proved

unlawful conduct in assaulting a mortally injured

person, because he may, depending upon the nature

of his own conduct and state of mind, still be

guilty of attempted murder, assault with intent

to murder or to do grievous bodily harm or common

assault."

(See further Kok (1985) 9 SACC 56; M C Marè (1990) 1 SACJ

24 at 38.)

It seems to me that in considering which of the

two minority judgments in the Khoza case correctly states

the position governing criminal liability for murder in

joining-in cases involving the application of the doctrine

of common purpose, the answer should be determined by

107

reference to legal principle.

In so approaching the matter it is essential at

the outset to define the logical problem presented by the

joining-in issue. In attempting such a definition I

can do no better than to borrow the words of Professor

Whiting in the article (1986 SAW) to which a number of

references have already been made. In the course of a

lucid and helpful discussion of the issue the learned

author says (at 49) that:-

"...the essence of the problem is not whether one

can be guilty of murder where one's only

association with the killing is non-causal in

nature, but whether one can be guilty of murder

where such non-causal association arises only

after all the acts contributing to the victim's

death have already been committed."

With that succinct delineation of the problem involved I

entirely agree.

Earlier in this judgment the question has been

foreshadowed whether the conclusion reached by BOTHA, AJA

108

at 1052 E-G in the Khoza case provides a secure foundation

for the further proposition (developed in the passage at

1052H - 1053C) that it is unnecessary to distinguish

between participation in a common purpose to kill which

begins before the deceased has been fatally wounded and

such participation which begins thereafter but while the

deceased is still alive. As to that, and with great

respect, I am disposed to think that in truth there is a

fundamental difference between these two situations. In

my view the disparity is correctly stated by Whiting (op

cit) at 49:-

"Although the crime of murder is of course not

complete until the victim dies, liability for the

victim's death depends on responsibility for

conduct which has caused it. While such

responsibility need not always arise directly -

simply from the fact that it is the accused's own

conduct - but may also arise indirectly or

mediately - through the attribution to the

áccused in terms of the doctrine of common

purpose of the conduct of some other person or

persons - the vital point remains that an accused

cannot be guilty of murder unless he bears re-

109

sponsibility for conduct which has caused the

victim's death. Thus, to hold an accused liable

for murder on the basis of an association with

the crime only after all the acts contributing to

the victim's death have already been committed

would involve holding him responsible ex post

facto for such acts. The criminal law is firmly

opposed to liability based on ex post facto or

retrospective responsibility and does not

recognise it in any other situation. It would

therefore be contrary to accepted principle to

recognise it here."

In the minority judgment in the Mgxwiti case (at 382H -

383A) the principle of ratification was invoked in support

of the Schreiner rule. Such invocation indicates a

recognition on the part of the learned judge of appeal that

the application of the rule involved retrospective criminal

liability. In Khoza's case (at 1053H) BOTHA, AJA

preferred to found the appellant's criminal liability for

murder simply on his active association with the murderous

assault of accused no 2 in that case. However, on any

view of the true juridical basis of the Schreiner rule, the

element of retrospectivity, alien to our principles of cri-

minal responsibility, remains ineluctable.

110

For the reasons aforegoing I conclude that the

Schreiner rule does not form part of our criminal law; and

that on the facts accepted in the minority judgments in the

Khoza case the appropriate verdict was one of attempted

murder and not one of murder. For the same reasons I now

consider that the obiter views ventured by me in the Khoza

case (at 1044H - 1045A) were wrong.

In the light of the above conclusion I return to

the facts of the instant case. In the judgment of the

court below, and following upon a discussion of the

minority judgments in the Khoza case, HARTZENBERG, J

expressed a predilection for views stated in the judgment

of BOTHA, AJA. The learned judge recorded that he had

directed his assessors that in regard to the joining-in

issue the law as stated by BOTHA, AJA was to be applied.

It follows that in so directing his assessors the learned

trial judge erred. It further follows that, even on the

assumption that all the trial court's findings of fact and

credibility were correctly made, the nine appellants should

111

not have been found guilty of murder. On the court a quo's

view of the facts the appropriate verdict in the case of

each appellant should have been one of attempted murder.

It remains to consider the correctness or

otherwise of the trial court's finding of facts and

credibility. It is convenient to deal at the outset with

the position of accused nos 3 and 8. Accused no 3

admitted that he had applied force to the person of the

deceased; but he denied that he had assaulted her. He

said that his foot had landed upon the deceased quite

unintentionally. Due to a push from the jostling crowd,

so he testified, he lost his balance. In an attempt to

regain it he stretched out his leg, and in so doing his

foot landed on the deceased' shoulder and moved across her

body. In its judgment the trial court criticised the

evidence of accused no 3 in various fairly minor respects,

and then proceeded to say that upon a screening of the

112

video film:-

"...dit klinkklaar duidelik is eerstens dat

beskuldigde 3 nie weens die gedruk van die skare

nie maar doelbewus na die oorledene skop, en

tweedens dat hy nie poog om die mense te keer om

die oorledene aan te rand nie, maar dat hy

inderdaad tevredenheid betuig met die aanval op

die oorledene. Sy gebare en uitdrukkings spreek

daarvan."

In the video film accused is seen gesticulating on two

occasions. On the first occasion he makes violent

gestures with his right arm which might well be indicative

of an act of encouragement to the crowd to strike further

blows. On the second occasion he again gesticulates in

what appears to be an aggressive fashion. In the light of

these actions the evidence of accused no 3 that he was

actually trying to curb further assaults by the crowd is

not very convincing. Upon a careful viewing of the

relevant portion of the video film, however, I consider

that the version of accused no 3 that his foot landed upon

the deceased inadvertently may reasonably possibly be true.

113

I disagree, with respect, with the impression formed by the

trial court that what is shown is a deliberate kick by

accused no 3 at the deceased. Although the gesticulations

in which he indulged excite suspicion against accused no 3,

it would, in my opinion, be dangerous to rely upon such

gestures alone. Viewed as a whole the evidence does not,

in my judgment, provide proof beyond reasonable doubt that

accused no 3 in fact assaulted the deceased. In my

opinion accused no 3 was not shown to have committed any

crime whatever, and he should have been acquitted.

In regard to accused no 8 the trial court said in

its judgment:-

"....dat die videoband duidelik aantoon dat hy

opsetlik op die oorledene trap...."

Upon a close scrutiny of the relevant portion of the video

film I am not satisfied that accused no 8 trampled upon the

deceased. He admits that he deliberately placed his foot

upon the buttocks of the deceased and he says that his

114

motive in so doing was to pose for a camera-man. The

video film does not show that he placed his foot on the

deceased in a violent fashion; and in my opinion his

evidence also may reasonably possibly be true. As with

accused no 3, so too in the case of accused no 8 the

latter's gestures portrayed in the video film cast doubt on

the truth of his claim that he was trying to restrain

rather than to incite the attackers. On the other hand

some credence is lent to the version of accused no 8 by his

testimony (in this respect accepted by the trial court)

that he went to the trouble of.picking up the deceased's

skirt and placing it upon her to cover up her nakedness.

In my view the evidence as a whóle does not establish

beyond reasonable doubt that accused no 8 harboured any

intention either to injure or to kill the deceased.

This last conclusion does not mean that accused

no 8 was entitled to an acquittal. On his own evidence he

115

intentionally and unlawfully applied some degree of force

to the body of the deceased. He should therefore have

been found guilty by the trial court of the crime of common

assault. I should add that although the force applied by

accused no 8 in placing his foot on the deceased may have

been insignificant, the assault in my opinion was not a

technical and inconsequential one. It was aggravated by

the deplorable circumstances in which it was committed.

Here was an assault perpetrated upon a helpless woman who

had, to the knowledge of accused no 8, been prostrated by a

sustained and vicious attack upon her. Despite the

reasonable possibility that no real physical injury to the

deceased may have been intended, the assault was a

contumelious and contemptible one. For purposes of

sentence it must, I consider, be viewed in a serious light.

Next it is necessary to refer to the finding by

the trial court that at the time of the rock-dropping

116

incident the deceased was still alive. This finding was a

prerequisite to the trial court's verdict that accused no 4

was guilty of murder. Since, as I have already indicated,

accused no 4 was wrongly convicted of murder, the next

inquiry is whether he was not guilty of the crime of

attempted murder. Such guilt may be established if it is

shown that at the time of the rock-dropping incident

accused no 4 subjectively believed that the deceased was

still alive, irrespective of whether his subjective belief

was right or wrong. For the reasons which follow I am

satisfied that the evidence establishes beyond reasonable

doubt that at the time of the rock-dropping incident

accused no 4 subjectively entertained such a belief; and

that his evidence to the contrary is to be rejected as

false. Accordingly it is unnecessary to consider whether

the trial court's finding that the deceased was still alive

at that stage of events was correctly made.

117

The trial court disbelieved accused no 4. In the

course of his judgment the learned judge remarked:-

"Beskuldigde nr 4 het in ons oordeel homself as 'n

leuenaar bewys. Ons is van mening dat hy sy

dronkenskap aansienlik oordryf het. Hy het

getuig dat hy so onder die invloed van drank was

dat hy nie wou dans nie omdat hy bang was dat hy

sou omval. Die manier soos uitgebeeld op die

videoband waarop hy met die groot klip

aangehardloop kom, is net nie te versoen met so 'n

dronk persoon nie. Indien hy so vreeslik dronk

was, is dit ook moeilik te begryp hoe hy sal

onthou dat hy vir vier of vyf minute gestaan en

kyk het en gehoor het toe gesê word 'Dit is klaar

met Maki' , en dat hy dan boonop gaan ondersoek

instel om te kyk of die oorledene dood is. Vir

'n mán wat graag op televisie wou verskyn het hy

eienaardig opgetree. Hy het nooit werklik sy

gesig na die kamera gedraai nie."

I agree with the trial Court's assessment that accused no 4

was a lying witness. Apart from the cogent reasons upon

which the trial Court's finding rests, I would add that I

agree with the submissions advanced by Mr Bredenkamp, who

led for the respondent, that the utter mendacity of accused

no 4 is further revealed by his evidence in relation to the

118

number of times that the rock was dropped by him on the

deceased. The trial court correctly found it proved

beyond reasonable doubt that accused no 4 dropped the.rock

upon the deceased more than twice. The tenor of accused

no 4's evidence in regard to this issue has already been

explored. It is tolerably clear, I consider, how accused

no 4 became entangled in falsehoods. With an eye to the

video film, but overlooking the incriminating evidence

provided by the still photographs, accused no 4 initially

tried to tailor his evidence by providing an explanation

for having dropped the rock upon the deceased twice only.

In so doing he already experienced some difficulty in

clarifying why he had decided to drop the rock on the

second occasion. To justify a third dropping of the rock

upon what he said was a corpse would have been even more

awkward for him; and he tried falsely to suppress the fact

of the third dropping. Confronted later with the

119

irrefutable evidence of the third occasion he pretended

that he could not remember it. In the light of the

detailed and circumstantial account which he was able to

give in regard to the first two occasions, his evidence

that he was quite unable to recall the third incident is

obviously false. Also plainly untrue was the evidence of

accused no 4 that his jocular reference to the burning of

Joel's cake, which drew laughs from the crowd, was to be

dismissed as meaningless twaddle. Having regard to the

belief generally held that the deceased and det sgt Msibi

had been lovers this utterance is readily explicable. It

was clearly intended by accused no 4 (and was so understood

by the mob) as a crude reference to the deceased's

genitalia.

No credence whatever can be given to the

testimony of accused no 4. The rock used by him was a

very large and heavy object. To pick it up and to carry

it reguired much physical exertion. It represented a

120

formidable and deadly weapon. In my opinion it is

thoroughly improbable that the rock-dropping incident was

intended by accused no 4 simply as an empty charade in

which a lifeless body was used as a stage prop. Taken as

a whole, so I consider, the evidence establishes beyond

reasonable doubt that accused no 4 dropped the rock upon

the deceased because he thought that she was still alive

and because he wanted to finish her off. The rock-

dropping incident affords the clearest oyert act of

association by accused no 4 with the mob's intention to

kill the deceased. Tt follows that accused no 4 should have

been found guilty by the trial court of the crime of

attempted murder.

It remains to consider whether on the doctrine of

common purpose any of the remaining appellants (accused nos

1, 2, 5, 9, 10 and 11) should have been found guilty of

attempted murder. Beforê dealing with the case against

121

these six appellants a few general observations may not be

out of place. For example, in seeking to draw inferences

in the sort of situation presented by the facts in the

instant case, the following common-sense precept at once

suggests itself. Its first part is this. The more

inherently dangerous to life or limb the assault committed

upon the deceased by a particular attacker, and the longer

the duration of such assault, the stronger will be the

evidence that he or she shared the mob's common purpose to

destroy the deceased; and the readier will the court be to

infer the existence of the mens rea requisite for murder.

Its plain counterpart is that the less intrinsically

harmful to life or limb the assault committed upon the

deceased by a particular attacker, and the shorter its

duration, the weaker will be the evidence that he

or she shared the mob's common purpose

122

to kill the deceased; and the more reluctant and wary _the

court will be to infer the existence of the mens rea

requisite for murder.

It has already been mentioned that for a proper

grasp of the facts of the case it is essential to study the

video film. In the following respect, however, a viewing

of the film may conduce to an unfair assessment of the

state of mind of a particular attacker. Mr Soggot, who

led for the appellants, correctly reminded us that whereas

an armchair viewer of the film gains the advantage of a

conspectus of the whole of that part of the attack which

was recorded by the cameras, not all the appellants were

present at every stage of the recorded attack.

Accordingly it is necessary for the court to remind itself

that while it enjoys the benefit of what counsel termed an

"over-view" of the events leading up to the deceased's

death, in the case of at least some of the appellants the

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observations made and the perceptions formed by them at the

scene of the crime might have been more fragmentary and

sketchy. In reviewing the position of each of the

accused nos 1, 2, 5, 9, 10 and 11, I bear this in mind.

This is a convenient stage to deal shortly with a

contention advanced by their counsel on behalf of the

appellants generally. It was submitted, albeit somewhat

tentatively, that in the present case the deceased had been

the victim not so much of any concerted attack by a group

of attackers, but rather that there had been perpetrated

upon her a series of discrete and unrelated acts of

aggression, each of which should really be viewed in

isolation. In my opinion that argument is quite

untenable. Any possible doubt upon the subject is

dispelled at once when one looks at and listens to the

film. The grim evidence provided by the video film

affords a classic example of concerted and joint violence

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by an enraged and bloodthirsty mob. The suggestion that in

assaulting the deceased each of accused nos 1, 2, 5, 9, 10

and 11 was engaged upon an independent frolic of his or her

own, entirely divorced from the general attack upon the

deceased, is devoid of merit.

Earlier in this judgment the evidence of each of

the nine appellants has been analysed. On the merits of

the appeal against the trial court's convictions the cases

of accused nos 3 and 8 have been dealt with. At this

juncture it is necessary to say something on the subject of

the credibility and reliability of the remaining

appellants. Accused no 4's demerits as a witness have

already been detailed. He was plainly a lying and

untrustworthy witness. It has also been pointed out that

accused nos 10 and 11 were highly evasive and

unsatisfactory witnesses. Looking broadly at the

testimony of accused nos 1, 2, 5, 9, 10 and 11, it is

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unnecessary for purposes of the present appeal to say any

more than that on two cardinal issues in the case the

evidence of each of them does not bear scrutiny and it was

rightly rejected by the trial court as untrue. A common

theme which runs through their testimony is that when they

assaulted the deceased they appreciated (a) neither with

what intention the mob was attacking the deceased (b) nor

that the death of the deceased might result from the mob

attack. I have already indicated my unqualified agreement

with the following finding of the trial court:-

"In ons oordeel kon geen mens geglo het dat

daardie aanval sou eindig voordat die oorledene

dood was nie."

I have also pointed out that it clearly emerges from the

video film that the mood of the crowd was ferocious,

ruthless and savage. The acceptability or otherwise of

the defence évidence on the two crucial points (a) and (b)

above has to be tested against the finding of the trial

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court just quoted, while further bearing in mind that the

mood of the crowd signalled its clear intention to destroy

the deceased. In my judgment the evidence of each of

accused nos 1, 2, 5, 9, 10 and 11 ín respect of the two

critical issues (a) and (b) is thoroughly implausible and

quite unworthy of belief.

For the sake of convenience I repeat here a

further passage from the judgment of the trial court quoted

earlier by me:-

"Elkeen van die nege beskuldigdes het gemeensaak

gemaak met die moordbende en het deur hulle

optrede bygedra tot die verhoging in felheid van

die aanval op die oorledene.

Ons verwerp derhalwe al die beskuldigdes se

getuienis dat hulle bloot die oorledene wou laat

pyn voel het en dat hulle nie met die groepe

aanranders gemeensaak gemaak het nie."

In my opinion the trial court rightly rejected as false the

evidence of accused nos 1, 2, 5, 9, 10 and 11 that they

intended no more than that the deceased should experience

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pain. Furthermore, as far as accused nos 2, 5, 9, 10 and

11 are concerned it is obvious, in my opinion, that each of

them acceded to the mob's common purpose to kill the

deceased. Each had the mens rea required for the crime of

murder. Their sharing of the common purpose is

demonstrated by their respective overt acts in assaulting

the deceased in the fashion already described. The case

against them is, in my opinion, quite clear and requires no

further discussion. It follows, in my view, that the trial

court should have convicted accused nos 2, 4, 5, 9, 10 and

11 of attempted murder.

What merits separate consideration is whether

there is suf ficient evidence to sustain, as the only

reasonable inference, that accused no 1 likewise acceded to

the mob's common purpose to kill the deceased. I say this

for the reason that her assault upon the deceased was brief

in duration and intrinsically less violent than the

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assaults perpetrated by accused nos 2, 4, 5, 9, 10 and 11.

The assault of accused no 1 consisted of a single kick.

The question which immediately suggests itself is

this. What did accused no 1 see when she pushed her way

through to the inner circle of people surrounding the

deceased? On accused nd 1's own version the deceased was

then lying on the ground and her torso had been stripped of

clothing. People were hitting the deceased with sticks,

and they were kicking her on the body, legs and buttocks.

Accused no 1 joined in the assault (see para (23) of exh

"X") at a time when the attack upon the deceased, as

recorded by the cameras, had reached a fairly advanced

stage. It is apparent (see paras (1) to (22) of exh "X")

that when accused no 1 joined in the assault the deceased

had already been subjected to a sustained and merciless

battering; and a serious and concerted assault upon her

was continuing in the presence and full view of accused

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no 1. The piteous appearance and the desperate plight of

the deceased at the very stage when accused no 1 joined in

is chillingly portrayed in the video film. Despite the

fact that accused no l's own assault was considerably less

violent and briefer than the assaults perpetrated by

others, the circumstances surrounding her joining in appear

to me to point inescapably to the conclusion that accused

no 1 likewise acceded to the mob's common purpose to kill

the deceased. She too had the mens rea required for the

crime of murder. It follows that the trial court should

also have convicted accused no 1 of attempted murder.

To sum up so far. In my view. accused no 3

should have been acquitted; accused no 8 should have been

convicted of common assault; and each of the remaining

seven appellants (accused nos 1, 2, 4, 5, 9, 10 and 11)

should have been convicted of attempted murder.

Having regard to the aforegoing I turn to the

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matter of sentence. One begins by considering what

sentences the trial court might fittingly have imposed on

accused no 8 in respect of common assault and on each of

accused nos 1, 2, 4, 5, 9, 10 and 11 in respect of the

crime of attempted murder.

In his judgment on sentence the learned trial

judge reviewed the personal circumstances of each of the

appellants. His exposition of them will not be repeated

here, but they will be taken into account. I would add

only that in weighing the moral (as opposed to the legal)

culpability of the eight appellants concerned, the

evidence of Professor Diener is directly relevant and

helpful. Accused nos 1, 4, 5, 9 and 10 were first

offenders. Accused nos 2, 8 and 11 had previous

convictions. In the case of accused no 2 the trial judge

properly decided that her single previous conviction was

such as to be irrelevant for purposes of sentence in the

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present case.

It is convenient to deal first with accused no 8.

A fitting punishment for the common assault committed by

him would, so I consider, have been a sentence of

imprisonment for six months, the entire period of

imprisonment being conditionally suspended.

For the trial court's finding that accused nos 1,

2, 4, 5, 9, 10. and 11 were guilty of murder with

extenuating circumstances there will have to be

substituted, in the case of each of the aforesaid six

appellants, a verdict of guilty. of the lesser crime of

attempted murder. This, in turn, will require

modification of and a reduction in the sentences

respectively imposed upon them by the trial court.

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In the court below accused nos 2, 4 and 10 were

each sentenced to life imprisonment. I share the view of

the trial judge that these three appellants merit equal

severity in punishment. The conduct of each was

characterised by the same degree of bestiality. Accepting

that such conduct amounted in law to no more than attempted

murder, it seems to me that an appropriate sentence in the

case of each of accused nos 2, 4 and 10 would have been

imprisonment for ten years.

I deal next with accused no 1. Her moral

culpability seems to me to be appreciably less than that of

the other appellants who were guilty of attempted murder.

In her case an appropriate sentence would have been one of

imprisonment for five years, two years thereof being

conditionally suspended. In the case of accused no 5,

whose assault upon the deceased was more sustained and more

violent than that of accused no 1, a fitting punishment for

133

attempted murder would have been a sentence of imprisonment

for six years, two years thereof being conditionally

suspended.

Lastly the position of the two youthful

offenders, accused nos 9 and 11, must be considered.

Accused no 9 is sturdily built for her age; and her

brutish assault upon the deceased began with a kick to the

head. Accused no 9 was, however, barely fourteen years

old. In my opinion a suitable sentence for her crime of

attempted murder would have been imprisonment for three

years, half of which being conditionally suspended.

Accused no 11 was fifteen years old at the time of the

assault. He was a severely underprivileged child and he

spent only one year at school. What goes into the scales

against him is the fact that he had four previous

convictions for housebreaking with intent to steal, and

theft; and one previous conviction for assault involving

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the use of a knife. His role in the assault upon the

deceased was prominent, prolonged and violent. The video

film reveals accused no 11 as the personification of a

vicious depravity against which the community requires

protection. I consider that in his case a fitting

sentence for his crime of attempted murder would have been

imprisonment for eight years.

After the date (24 June 1987) on which they were

sentenced the appellants began serving their respective

periods of imprisonment; and they were still in custody

when the appeal was heard. Subsequent to the hearing of

the appeal this Court ordered the release of accused nos 3

and 8. The order stated that the reasons therefor would

be given later. Those reasons are stated in this

judgment.

In regard to the sentences to be imposed on the

eight appellants whose convictions have to be altered there

135

arises in the present appeal the same problem which

confronted this court in S v Mgedezi and Others (supra) at

716F - 717B : in terms of sec 282 of the Criminal

Procedure Act, 51 of 1977, a sentence of imprisonment

imposed by this court for an offence other than the offence

for which the accused was sentenced by the trial court

cannot be antedated to the date of which the trial court

passed sentence. In order to do justice in the matter of

sentence I propose to resort to the same device to which

the court was driven in Mgedezi's case. I shall make

allowance for the period of imprisonment already served by

the appellants by abating those sentences which in my

opinion would have been appropriate had they been imposed

on 24 June 1987.

In the result the following orders are made:-

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(1) The appeal of accused no 3 (Solomon Motsoagae)

succeeds and his conviction and sentence are set

aside.

(2) The appeal of accused no 8 (Phineas Maseko)

succeeds to the extent that his conviction for

murder with extenuating circumstances is reduced

to one of common assault. His sentence is

altered to read:-

"Imprisonment for three months wholly suspended

f or three years on condition that he is not

convicted of any offence involving violence upon

a person, committed during the period of

suspension, for which he is sentenced to

imprisonment without the option of a fine."

(3) The appeals of accused nos 1, 2, 4, 5, 9, 10 and

11 succeed to the following extent. In each case

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the conviction for murder with extenuating

circumstances is altered to a conviction for

attempted murder. For the sentences imposed by

the trial court the following sentences will be

substituted:-

(a) Accused no 1 (Matlakala Elizabeth

Motaung) -

"A sentence of imprisonment for two

years wholly suspended for a period of

three years on condition that she is

not convicted.of any offence involving

violence upon a person, committed

during the period of suspension, for

which she is sentenced to imprisonment

without the option of a fine."

(b) Accused no 5 (Lorraine Zanele Sobuzi)

"A sentence of imprisonment for three

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years of which two years are suspended

for a period of three years on

condition that she is not convicted of

any offence involving violence upon a

person, committed during the period of

suspension, for which she is sentenced

to imprisonment without the option of a

fine."

(c) Accused nos 2 (Sanna Twala) and

4 (Linda Alaxandra Hlophe) and

10 (Daniel Mbokwane)

"A sentence of imprisonment for seven

years."

(d) Accused no 9 (Priscilla Nthabiseng

Moreme)

"A sentence of imprisonment for one

year wholly suspended for a period of

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three years on condition that she is

not convicted of any offence involving

violence upon a person, committed

during the period of suspension, for

which she is sentenced to imprisonment

without the option of a fine.

(e) Accused no 11 (Siphiwe Goodboy Msipha)

"A sentence of imprisonment for five

years."

G G HOEXTER, JA

SMALBERGER, JA . ) MILNE, JA ) Concur FRIEDMAN, AJA ) NIENABER, AJA )